58058 Federal Register / Vol. 71, No. 190 / Monday, October 2, 2006 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 300, 600, and 635 

[Docket No. 030908222-6241-02; I.D. 

051603C] 

RIN 0648–AQ65 

Atlantic Highly Migratory Species; 

Recreational Atlantic Blue and White 

Marlin Landings Limit; Amendments to 

the Fishery Management Plan for 

Atlantic Tunas, Swordfish, and Sharks 

and the Fishery Management Plan for 

Atlantic Billfish 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; decision on petition 

for rulemaking. 

SUMMARY: NMFS finalizes the 

Consolidated Highly Migratory Species 

(HMS) Fishery Management Plan (FMP). 

This Final Consolidated HMS FMP 

changes certain management measures, 

adjusts regulatory framework measures, 

and continues the process for updating 

HMS essential fish habitat. This final 

rule could impact fishermen and dealers 

for all Atlantic HMS fisheries. The final 

rule will: establish mandatory 

workshops for commercial fishermen 

and shark dealers; implement 

complementary time/area closures in 

the Gulf of Mexico (GOM); implement 

criteria for adding new or modifying 

existing time/area closures; address 

rebuilding and overfishing of northern 

albacore tuna and finetooth sharks; 

implement recreational management 

measures for Atlantic billfish; modify 

bluefin tuna (BFT) General Category 

subperiod quotas and simplify the 

management process of BFT; change the 

fishing year for tunas, swordfish, and 

billfish to a calendar year; authorize 

speargun fishing gear in the recreational 

fishery for bigeye, albacore, yellowfin, 

and skipjack (BAYS) tunas; authorize 

buoy gear in the commercial swordfish 

handgear fishery; clarify the allowance 

of secondary gears (also known as 

cockpit gears); and clarify existing 

regulations. This final rule also 

announces the decision regarding a 

petition for rulemaking regarding 

closure areas for spawning BFT in the 

Gulf of Mexico. 

DATES: This final rule is effective 

November 1, 2006, except for the 

addition of § 635.8 which will be 

effective January 1, 2007. 

ADDRESSES: Copies of the Final 

Consolidated HMS FMP and other 

relevant documents are available from 

the Highly Migratory Species 

Management Division website at 

www.nmfs.noaa.gov/sfa/hms or by 

contacting Karyl Brewster-Geisz at 301– 

713–2347. 

FOR FURTHER INFORMATION CONTACT: 

Karyl Brewster-Geisz, Margo SchulzeHaugen, or Chris Rilling at 301–713– 

2347 or fax 301–713–1917; Russell 

Dunn at 727–824–5399 or fax 727–824– 

5398; or Mark Murray-Brown at 978– 

281–9260 or fax 978–281–9340. 

SUPPLEMENTARY INFORMATION: 

Background 

The Atlantic HMS fisheries are 

managed under the dual authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) and the 

Atlantic Tunas Convention Act (ATCA). 

The Final Consolidated HMS FMP is 

implemented by regulations at 50 CFR 

part 635. 

NMFS announced its intent to prepare 

an Environmental Impact Statement 

(EIS) amending the the Atlantic Billfish 

FMP and FMP for Atlantic Tunas, 

Swordfish, and Sharks on July 9, 2003 

(68 FR 40907). On April 30, 2004 (69 FR 

23730), NMFS announced the 

availability of an Issues and Options 

Paper and nine scoping meetings. On 

May 26, 2004 (69 FR 29927), NMFS 

extended the comment period on the 

Issues and Options Paper, and 

announced an additional scoping 

meeting. A summary of the major 

comments received during scoping was 

released in December 2004 and is 

available on the HMS Management 

Division website or by requesting a hard 

copy (see ADDRESSES). During scoping, 

NMFS referred to this project as 

Amendment 2 to the existing FMPs. 

Starting with the Predraft stage, NMFS 

has referred to this project as the Draft 

Consolidated HMS FMP. 

In February 2005, NMFS released the 

combined Predraft to the Consolidated 

HMS FMP and annual Stock 

Assessment and Fishery Evaluation 

(SAFE) Report. Comments received on 

both the Issues and Options Paper and 

the Predraft were considered when 

drafting and analyzing the ecological, 

economic, and social impacts of the 

alternatives in the proposed rule. A 

summary of the comments received on 

the Predraft was released in June 2005 

and is available on the HMS 

Management Division website or by 

requesting a hard copy (see ADDRESSES). 

On August 19, 2005, NMFS published 

the proposed rule (70 FR 48804), and 

the Environmental Protection Agency 

(EPA) published the Notice of 

Availability (NOA) for the Draft 

Environmental Impact Statement (DEIS) 

and the accompanying Draft 

Consolidated HMS FMP (70 FR 48705). 

The 60-day comment period on the 

proposed rule was initially open until 

October 18, 2005. However, because 

many of NMFS’ constituents were 

adversely affected by Hurricanes Katrina 

and Rita in 2005, and the resultant 

cancellation of three public hearings in 

the Gulf of Mexico region, NMFS 

extended the comment period on the 

proposed rule until March 1, 2006 (70 

FR 58177, October 5, 2005) for a total of 

194 days. During that time, NMFS held 

24 public hearings, gave presentations at 

the five Atlantic Regional Fishery 

Management Councils and at the Gulf 

and Atlantic States Marine Fisheries 

Commissions, and received several 

thousand written comments. These 

comments are summarized below under 

Response to Comments. 

In the proposed rule, NMFS also took 

additional actions including:(1) a 

withdrawal of the 2003 proposed rule to 

implement the International 

Commission for the Conservation of 

Atlantic Tunas (ICCAT) 250 

recreationally caught marlin landings 

limit (September 17, 2003; 68 FR 

54410); (2) a decision not to include in 

the Draft Consolidated HMS FMP the 

exemption to the ‘‘no sale’’ provision for 

the artisanal handline fishery in Puerto 

Rico, as outlined in the 1988 Billfish 

FMP; and (3) an analysis of a petition 

for rulemaking from Blue Ocean 

Institute et al. that requested NMFS 

close a particular BFT spawning area in 

the Gulf of Mexico (copies of the 

petition are available upon request, see 

ADDRESSES). Item 1 above was 

completed at the proposed rule stage. 

Item 2 is finalized in this final rule with 

the consolidation of the two FMPs, and 

is not discussed further. The decision 

regarding the petition for rulemaking 

(item 3) is described in this final rule 

after the changes to proposed rule 

section. 

This final rule does not contain 

information regarding the management 

history of Atlantic HMS, EFH, or the 

alternatives considered. Those issues 

are discussed in the proposed rule and 

are not repeated here. This final rule 

does contain responses to comments 

received during the public comment 

period, a description of changes to the 

proposed rule, and a decision regarding 

a petition to rulemaking. The response 

to comments section is organized 

similarly to the organization of the Final 

HMS FMP and the proposed rule. The 

description of the changes to the 


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proposed rule can be found after the 

response to comment section. The 

decision regarding the petition for 

rulemaking can be found after the 

changes to the proposed rule section. 

Information regarding the 

management history of Atlantic HMS, 

EFH, and the alternatives considered 

was provided in the preamble of the 

proposed rule and is not repeated here. 

Additional information can be found in 

the Final Consolidated HMS FMP 

available from NMFS (see ADDRESSES). 

Most of the measures in this rule, 

such as the measures relating to time/ 

area closures, BFT, authorized fishing 

gears, and regulatory housekeeping, will 

be effective on November 1, 2006. 

However, the workshop alternatives 

(§ 635.8) will be effective on January 1, 

2007, in order to coordinate the 

workshop requirements with the fishing 

vessel and dealer renewal timeframes. 

The management measures related to 

the directed billfish fishery (e.g., use of 

circle hooks in billfish tournaments) 

will also be effective on January 1, 2007, 

in order to allow anglers and small 

entities time to adjust to the new 

requirements. Furthermore, as a result 

of this final rule, all of the HMS 

management programs will be 

implemented on a calendar year cycle 

(January 1 to December 31). The 

Atlantic shark management timeframe 

will maintain the status quo, whereas 

billfish, tunas, and swordfish will shift 

from a fishing year (June 1 - May 31) to 

a calendar year at different times in 

2007. Atlantic billfish will shift to a 

calendar year on January 1, 2007. Tunas 

and swordfish will shift to a calendar 

year on January 1, 2008. To transition 

from a fishing year to a calendar year for 

tunas and swordfish, NMFS will 

establish an abbreviated 2007 fishing 

year via a separate action for BFT and 

swordfish to cover the months between 

the end of the 2006 fishing year (May 

31, 2007) and the start of the new 2008 

calendar year (January 1, 2008). 

Response to Comments 

A large number of individuals and 

groups provided both written and verbal 

comments during the public comment 

period. The comments are summarized 

below together with NMFS’s responses. 

All of the comments are grouped 

together in a format similar to that 

utilized in the preamble of the proposed 

rule. There are nine major groupings: 

Bycatch Reduction; Rebuilding and 

Preventing Overfishing; Management 

Program Structure; Essential Fish 

Habitat (EFH) Update; Economic and 

Social Impacts; Consolidation of the 

FMPs; Objectives of the FMP; Comment 

Period/Outreach; and General. 

Within many of these major groupings 

are several separate subheadings. The 

comments are numbered consecutively, 

starting with 1, at the beginning of each 

of these separate subheadings. The 

subheadings under ‘‘Bycatch 

Reduction’’ are: (A) Workshops; and, (B) 

Time/Area Closures. The subheadings 

under ‘‘Rebuilding and Preventing 

Overfishing’’ are: (A) Northern Albacore 

Tuna; (B) Finetooth Sharks; and, (C) 

Atlantic Billfish. The subheadings 

under ‘‘Management Program Structure’’

include: (A) Bluefin Tuna Quota 

Management; (B) Timeframe for Annual 

Management of HMS Fisheries; (C) 

Authorized Fishing Gears; and, (D) 

Regulatory Housekeeping Measures. 

There are no separate subheadings 

under the major groupings entitled 

‘‘EFH Update’’; ‘‘Economic and Social 

Impacts’’; ‘‘Consolidation of the FMPs’’; 

‘‘Objectives of the FMP’’; and, 

‘‘Comment Period/Outreach.’’

All of the comments in the major 

grouping entitled ‘‘General’’ are 

numbered consecutively, beginning 

with 1, however the grouping is further 

divided into subsections that address 

general comments related to recreational 

HMS fishing; commercial HMS fishing; 

longlines; swordfish; tunas; sharks; 

fishing mortality and bycatch reduction; 

permitting, reporting and monitoring; 

enforcement; and ICCAT. 

Bycatch Reduction 

A. Workshops 

Comment 1: NMFS should have 

workshops for the recreational fishing 

industry explaining the use of circle 

hooks. 

Response: NMFS has conducted 

educational outreach efforts to promote 

the use of circle hooks in recreational 

fisheries in the past and will continue 

to do so in the future. NMFS has 

distributed information on circle hooks 

using informational pamphlets, and in 

person by attendance at billfish 

tournaments. This final rule will 

implement shark identification and 

careful release and disentanglement 

workshops as required by Endangered 

Species Act (ESA) Biological Opinions 

(BiOps). The Agency may consider 

hosting voluntary workshops to address 

the use of circle hooks in the 

recreational fishery and may provide 

additional information on circle hooks 

at billfish tournaments. 

i. Protected Species Safe Handling, 

Release, and Identification Workshops 

for Pelagic Longline, Bottom Longline, 

and Gillnet Fishermen 

Comment 2: Post-release survival is 

important to any successful 

conservation management regime and 

sustainable fisheries. NMFS needs 

additional education and outreach 

workshops, as well as cooperative 

research initiatives, before significant 

reductions in post-release mortality can 

be achieved. 

Response: The protected species safe 

handling, release, and identification 

workshops are intended to reduce the 

mortality of sea turtles, smalltooth 

sawfish, and other protected resources 

and non-target species captured 

incidentally in the HMS pelagic and 

bottom longline and gillnet fisheries. 

These workshops are required to 

comply with the 2003 and 2004 ESA 

BiOps. Owners and operators of PLL, 

BLL, and gillnet vessels will receive 

instruction on techniques for 

disentanglement, resuscitation, release, 

and identification of protected resources 

and other non-target species. The goal of 

the workshops is to increase fishermen’s 

proficiency with required release 

equipment and protocols to reduce the 

number of protected and non-target 

species mortalities. Through the 

Northeast Distant (NED) statistical area 

experiment, NMFS has shown that 

significant bycatch reductions can be 

achieved through proper research, 

education, and outreach. These 

workshops are intended to disseminate 

information learned from the NED 

experiment, as well as other information 

for the BLL and gillnet fisheries. 

Comment 3: Several comments 

supported mandatory protected species 

workshops for captains and owners. 

Some of those comments include: 

owners and captains should attend the 

workshops, but attendance should not 

be mandatory for the crew because it 

would not be feasible for crew members, 

who may not be U.S. citizens, to attend 

a workshop; owners’ attendance would 

discourage hiring untrained captains 

who do not have the expertise to 

properly release sea turtles; support for 

mandatory training to reduce postrelease mortality of longline-caught 

marine mammals and turtles; the 

GMFMC supports mandatory workshops 

for captains on pelagic longline vessels; 

getting their gear off the turtles should 

be all the incentive fishermen need; 

industry will benefit from attending 

these workshops because it will enable 

them to avoid further regulations; NMFS 

needs to comply with the BiOp to keep 

the fishery open; workshops are a good 

investment for the fishermen; and, EPA 

supports alternatives A2 and A3 

requiring mandatory workshops on 

handling protected species captured or 

entangled in fishing gear for all HMS 

pelagic and bottom longline vessel 

owners (A2) and operators (A3). EPA 


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also supported preferred alternatives A5 

(mandatory workshops/certification for 

shark gillnet vessel owners/operators). 

Response: Under the selected 

alternatives, NMFS will require owners 

and operators, but not crew members, of 

HMS longline and shark gillnet vessels 

to attend the protected species safe 

handling, release, and identification 

workshops. HMS longline and gillnet 

vessel owners will be required to attend 

and successfully complete the workshop 

before renewing their HMS fishing 

permit in 2007. Without workshop 

certification, the vessel’s permit will not 

be renewed. Operators will be required 

to attend the workshop to ensure that at 

least one person on board the vessel, 

who is directly involved with the 

vessel’s fishing activities, has been 

successfully trained in the proper safe 

handling, release, and identification of 

protected species. Without an operator 

trained in these techniques, the vessel 

will be prohibited from engaging in 

HMS PLL, BLL, and gillnet fishing 

activities. A safe handling, release, and 

identification workshop certificate will 

be required on board HMS permitted 

longline and gillnet vessels during 

fishing operations. Due to the large 

universe of HMS longline and shark 

gillnet crew members, NMFS will not 

require their attendance at these 

workshops. NMFS encourages operators 

to transfer the knowledge and skills 

obtained from successfully completing 

the workshops to the crew members, 

potentially increasing the proper 

release, disentanglement, and 

identification of protected resources. 

While crew members are not required to 

attend the workshops, to the extent 

practicable, the workshops will be open 

to anyone who wishes to attend and 

receive certification. 

Comment 4: NMFS received several 

comments supporting mandatory 

workshop certification for all HMS 

commercial and recreational hook and 

line fisheries. Those comments include: 

Handling and release workshops should 

be implemented immediately for all 

HMS commercial and recreational hook 

and line fisheries in order to gain the 

maximum benefit from mitigation 

technologies and fishing practice; 

training the greatest number of crew 

members is the key to protecting these 

imperiled species. To offset the 

economic impact, we support a longer 

interval between required training for 

the rest of the crew, but not a complete 

exemption; and, all HMS fishermen 

should the complete workshops. 

Response: This final rule requires 

owners and operators of PLL, BLL, and 

gillnet vessels to obtain the safe 

handling, release, and identification 

workshop certification. Certified 

operators will be encouraged to transfer 

the knowledge, skills, and protocols 

obtained from these workshops to the 

vessel’s crew members. While these 

workshops are mandatory for owners 

and operators, the workshops will also 

be open to other interested parties, 

including crew members and other HMS 

fishermen. Crew members that may 

have an opportunity to serve as an 

operator on board a vessel are 

encouraged to obtain the workshop 

training and certification. Crew 

members will not be required to obtain 

certification in the safe handling and 

release protocols because the average 

crew member’s individual cost to attend 

the workshop is greater than the owner 

and operator. Additional information 

suggests that turnover is higher with the 

vessel’s crew, making it difficult to 

continue operating a vessel with a fully 

certified crew. With at least one 

individual on board the vessel trained 

and proficient in the safe handling and 

release protocols, the likelihood of the 

safe release and disentanglement of 

protected species increases 

significantly. While implementing 

mandatory workshops for all 

commercial and recreational HMS 

fishermen is a laudable goal, NMFS 

does not have the resources to train 

such a large group of individuals at this 

time. Nearly 30,000 HMS recreational 

permit holders would need to be trained 

and certified. The cost and logistics of 

doing this would be prohibitive. 

However, NMFS may consider these 

workshops and other means for 

educating these permit holders in the 

future. 

Comment 5: NMFS received 

comments opposed to the protected 

species workshops. These comments 

include: handling bycatch correctly 

wastes too much time on a valuable 

money-making longline trip; I am 

opposed to alternative A2 and part of 

A5, mandatory workshops and 

certification for all HMS pelagic and 

bottom longline and shark gillnet vessel 

owners because it is unnecessary, unless 

they are an owner and an operator; 

owners may not be the vessel operator 

on fishing trips. The first priority should 

be the vessel operator onboard while at 

sea on fishing trips. 

Response: NMFS agrees that handling 

bycatch correctly may take extra time 

and effort. However, proper handling of 

bycatch ensures the continued survival 

of protected, threatened, and 

endangered species, prevents an 

exceedance of the incidental take 

statement (ITS), and prevents a 

shutdown of the fishery. NMFS realizes 

that many vessel owners may not 

operate, or be aboard, their vessels 

during fishing trips. Under this rule, 

protected species safe handling, release, 

and identification workshops are 

mandatory for all longline and gillnet 

vessel operators. NMFS will encourage 

these operators to disseminate the 

workshop information to their fishing 

crews. By certifying vessel owners, 

NMFS ensures that the owners are 

aware of the certification requirement 

and skills and will hold them 

accountable for engaging in fishing 

activities without a certified operator 

onboard. Additionally, the certification 

requirement will be linked to a vessel’s 

limited access permits and owners will 

not be able to renew their permits 

without successful completion of the 

required workshop. NMFS requires that 

vessel operators follow safe release and 

handling protocols when they have 

interacted with certain protected 

species. All other non-marketable 

species should be released in a way that 

maximizes their chances of survival. 

NMFS requires vessel owners and 

operators to meet or exceed the 

performance standards described in the 

2004 BiOp. 

Comment 6: NMFS received 

comments suggesting that the operator 

be required to train the vessel’s crew 

with the safe handling and release 

protocols. Those comments include: 

alternatives A3 and A5 should include 

a requirement that the certified vessel 

operator train new crew members prior 

to each trip as is customary for safety 

drills; and, it should be clarified that a 

trained and certified owner or operator 

must be aboard at all times and that this 

individual is responsible for ensuring 

that proper release and disentanglement 

gear is aboard, the crew is informed, and 

correct procedures are followed. 

Response: Owners and operators of 

HMS permitted longline and gillnet 

vessels will be required to obtain the 

protected species safe handling, release, 

and identification workshop 

certification before the vessel’s permit 

expires in 2007. Operators will be 

required to be proficient in the safe 

handling and release protocols to ensure 

that there is an individual on board the 

vessel with the necessary skills to 

disentangle, safely release, and 

accurately identify any protected 

species caught in the vessel’s gear. 

Owners and operators will be 

encouraged to explain and demonstrate 

the safe handling and release protocols 

to the vessel’s crew members. Owners 

and operators will not be required to 

train crew members, as this requirement 

would be difficult to monitor and 

enforce. While crew members are not 

required to attend the protected species 


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safe handling, release, and identification 

workshops, to the extent practicable, 

these workshops will be open to 

individuals interested in receiving the 

certification. 

Comment 7: NMFS received 

comments in support of training 

fishermen in the proper release of 

prohibited species and billfish, as well 

as protected species. These comments 

include: NMFS should include safe 

release training for sharks and billfishes 

in these workshops; these workshops 

should be referred to as ‘‘Careful 

Handling and Release Workshops,’’

rather than protected species workshops 

because the workshops are appropriate 

for many species; and, the scope of the 

protected species workshops should be 

expanded to include prohibited species. 

Response: NMFS agrees that safe 

handling, release, and identification 

training may be beneficial to all 

participants in HMS fisheries, including 

those that interact with sharks and 

billfishes. The need for protected 

species safe handling, release, and 

identification workshops stems from 

two BiOps issued for the commercial 

shark fishery and the pelagic longline 

fishery. These two BiOps also require 

outreach to the commercial fisheries 

employing PLL, BLL, and shark gillnet 

gear on the proper safe handling, 

release, and identification of protected 

species. To comply with these BiOps, 

the intent of these workshops is to 

reduce the post-release mortality of sea 

turtles that are most frequently caught 

by participants using BLL or gillnet gear 

to target sharks or PLL gear to target 

swordfish and tunas. However, the 

techniques, equipment, and protocols 

taught at the workshops, although 

specific to sea turtles, could be used to 

safely disengage hooks in other fish, 

such as billfish and sharks, and/or 

mammals that may be encountered. As 

NMFS collects additional data regarding 

the best methods to use to release 

billfish and other species, NMFS may 

consider modifying the existing 

workshops to include information on 

releasing these other species. Until that 

time, use of the dehooking equipment 

and protocols could be employed to 

safely dehook and release billfish and 

other non-target species. This use could 

increase post-release survival rates of 

non-target species. While workshop 

attendance and certification would not 

be mandatory for recreational 

fishermen, these individuals are 

welcome to attend voluntarily any of the 

workshops on safe handling, release, 

and identification to become more 

familiar with these techniques and 

protocols. 

Comment 8: NMFS received 

comments on grandfathering 

individuals who attended the industry 

certified workshops held in Orlando, 

Florida and New Orleans, Louisiana. 

Those comments include: the industry 

should be recognized for holding 

workshops before NMFS finalized 

mandatory workshops; the three-year 

clock should start ticking on January 1, 

2007, for those who are grandfathered 

in, not from when they took the 

workshop; certification should be given 

to fishermen and owners who attended 

previously held workshops; 85 percent 

of pelagic longline fishermen were 

trained and industry certified in 2005. 

The industry was supportive and 

actively engaged. These workshops 

should serve as a template for the future 

workshops; if the industry-certified sea 

turtle handlers who have already 

attended and passed the industry 

mandatory certification classes are 

required to do something, it should be 

an online review and should not have 

to lose additional time at sea and incur 

additional travel expenses; and, the 

process should be streamlined for these 

individuals to receive their initial 

certification. 

Response: NMFS agrees that industry 

should be recognized for holding 

voluntary workshops before NMFS 

finalized the Consolidated HMS FMP. 

As such, all owners and operators that, 

as documented by workshop facilitators, 

attended and successfully completed 

industry certification workshops held 

on April 8, 2005, in Orlando, FL, and on 

June 27, 2005, in New Orleans, LA, will 

automatically receive valid protected 

species workshop certificates prior to 

January 1, 2007. The certification must 

be renewed prior to the expiration date 

printed on the workshop certificate and 

will need to be renewed prior to 

renewing their HMS permit. Generally, 

the certificate will expire every three 

years consistent with the expiration date 

of the permit. However, if the certificate 

is received during a month that is not 

the owner’s or operator’s birth month, 

the certificate may expire in slightly less 

or slightly more than three years. For 

example, if the person’s birth month is 

June and they receive the certificate in 

March, the certificate would be valid for 

slightly more than three years from the 

date of completion of the workshop. 

Those who participated in the industrysponsored workshops will have three 

years from their permit renewal in 2007 

to renew their workshop certification. 

Should new information or protocols 

become available prior to re-certification 

of any owner or operator, NMFS will 

disseminate the new information or 

protocols to the certified individuals 

prior to their next workshop. 

Comment 9: NMFS received several 

comments requesting careful 

consideration when scheduling the 

workshops. Comments include: the 

lunar cycles should be considered when 

scheduling the workshops; workshops 

during closed season can still 

inconvenience people because shark 

fishermen also fish for wahoo, dolphin, 

etc.; NMFS needs to be cognizant of the 

time burden involved for fishermen; the 

mandatory workshops should be held 

only for critical issues because 

fishermen must be out fishing to be 

profitable; and, there needs to be 

flexibility in the process because not 

everyone will be able to attend the 

workshops. 

Response: To the extent practicable, 

NMFS will consider lunar cycles and 

their resultant impacts on the 

availability of HMS participants when 

scheduling protected species safe 

handling, release, and identification 

workshops. However, since the Agency 

does not know the other fisheries in 

which fishermen may be participating at 

all times, the Agency cannot guarantee 

that each workshop will be held at a 

time that would minimize lost fishing 

opportunities. These workshops will be 

held in areas with high concentrations 

of permit holders, according to the 

addresses provided when applying for 

an HMS permit. The workshop schedule 

will be available in advance to allow 

fishermen to attend a workshop that is 

most convenient to them. The Agency 

may provide an opportunity for the 

industry to schedule one-on-one 

training at the expense of the individual 

(i.e., trainer fees), if they are unable to 

attend any of the previously scheduled 

workshops. 

Comment 10: Some identification 

training should be provided to the 

owners and operators during the release 

and disentanglement workshops. 

Response: Species identification is 

vital for determining how best to handle 

a de-hooking event, and also enhances 

the amount and quality of data available 

regarding protected species interactions. 

Accurate species identification is also 

important for compliance with HMS 

fishery regulations, including the 

avoidance of prohibited species, 

maintaining quota limits, and accurate 

data collection. NMFS intends to make 

education a key component of the 

workshops, and will provide workshop 

participants with training to safely 

disentangle, resuscitate, and release sea 

turtles, as well as identify and release 

other protected species such as marine 

mammals and smalltooth sawfish. Sea 

turtle identification guides are also 


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available on the internet at http:// 

www.nmfs.noaa.gov/sfa/hms/. Some 

marine mammal identification 

information can be obtained from the 

Office of Protected Resources website: 

http://www.nmfs.noaa.gov/pr/species/ 

mammals/. The HMS website also 

contains a link (HMS ID Guide) to the 

Rhode Island Sea Grant bookstore where 

you may purchase identification guides 

for marine mammals, sharks, tunas, and 

billfish. 

Comment 11: NMFS received several 

comments on alternatives A6 and A16, 

certification renewal timetable. Those 

comments include: renewal of the 

workshop certification should occur 

every three years; NMFS should 

recertify every three years, but 

recertification every five years would be 

better; recertification more frequently 

than every three years would be too 

much; the workshop certification 

requirement could be an impediment to 

someone selling a vessel if one cannot 

transfer the certification; certification 

should be tied to the operator, not the 

vessel; and, the EPA supports 

alternative A6. 

Response: Under the selected 

alternative, owners and operators of 

HMS longline and shark gillnet vessels 

will be required to renew the mandatory 

protected species safe handling, release, 

and identification workshop 

certification every three years. A threeyear period for recertification will 

maintain proficiency in the release, 

disentanglement and identification 

protocols, and allow NMFS to update 

owners and operators on new research 

and developments related to the subject 

matter while not placing an excessive 

burden on the participants (e.g., lost 

fishing time and travel to attend 

workshops). NMFS considered 

recertifying owners and captains every 

five years, but determined that it allows 

a more extensive period of time to lapse 

between certification workshops, 

possibly affecting proficiency and the 

ability to obtain the latest updates on 

research and development of safe 

handling and dehooking protocols. 

NMFS also considered recertifying 

owners and operators every two years, 

but did not select the option because it 

would likely have the greatest economic 

burden for the participants due to 

increased frequency. Federally 

permitted shark dealers will also be 

required to renew the mandatory 

Atlantic shark identification workshop 

certification on a three-year timetable. A 

renewal frequency of three years 

ensures proficiency in shark 

identification and will provide an 

update on new developments in shark 

identification and HMS regulations. 

The workshop certification will not be 

transferable to any other person and will 

state the name of the permit holder on 

the certificate. If acquiring an HMS 

limited access permit (LAP) from a 

previous permit holder, the new owner 

will need to obtain a workshop 

certification prior to transferring the 

permit into the new owner’s name. This 

requirement ensures that every HMS 

limited access permit (LAP) owner is 

fully aware of and accountable for the 

mandatory protocols that must be 

followed on board a vessel with longline 

gear. 

The initial operator certification will 

be linked to the renewal of the vessel’s 

HMS LAP(s) in 2007. If the vessel owner 

holds multiple HMS LAPs, the operator 

would need to be certified prior to the 

earliest expiration date on any of the 

permits in 2007. After the initial 

certification, the operator’s workshop 

certificate would need to be renewed 

prior to the expiration date on the 

operator’s workshop certificate. 

Comment 12: PLL, BLL, and gillnet 

vessel owners may need to be allowed 

proxies as well as dealers. NMFS should 

consider a proxy for elderly owners. 

Response: The 2004 BiOp specifically 

requires captains to be certified in the 

safe handling, release, and identification 

protocols. This rule requires that 

operators, not captains, attend these 

workshops as operators are already 

defined in the regulations as the ‘‘master 

or other individual aboard and in charge 

of that vessel.’’ This rule also requires 

vessel owners for vessels employing 

longline or gillnet gear to attend the 

workshops to educate the vessel owner 

in the protocols, requirements, and 

responsibilities of participating in the 

commercial shark or swordfish 

commercial fisheries. Vessel owners 

will be held accountable for preventing 

their vessel from engaging in fishing 

activities without a certified operator on 

board. NMFS is concerned that vessel 

owners would select proxies that are not 

involved with the day-to-day operation 

of their vessel, thus compromising the 

goals of these workshops and weakening 

the vessel owner’s accountability for the 

activities conducted on board the vessel. 

Non-compliance with the requirements 

of the 2003 and 2004 BiOps could result 

in additional, more restrictive 

management measures in the future. 

Comment 13: EPA commented that 

the Draft Consolidated HMS FMP would 

be improved by providing a more 

balanced discussion of workshop costs, 

and noted that in today’s society, most 

trades and professions require 

practitioners to obtain licenses 

demonstrating competence. 

Additionally, without authorized 

takings procedures, owners/operators 

might have to defend themselves in 

courts of law for violating ESA. EPA 

stated that if one considers the time 

invested in attending a one-day 

workshop, this measure seems like a 

bargain. EPA questioned the assumption 

inherent in the cost/earnings analysis 

that accepts the premise that time spent 

becoming qualified to practice longline 

fishing is time lost, and of no value. 

Response: NMFS acknowledges that 

many trades and professions require 

practitioners to obtain licenses 

demonstrating competence. However, 

there is still an economic opportunity 

cost associated with any required 

activity that would not otherwise be 

taken voluntarily. In the case of 

analyzing the economic costs associated 

with workshop alternatives, NMFS 

assumed the activity that workshop 

participants would be engaged in, if 

they were not attending the workshop, 

would be fishing. NMFS’s use of wage 

rates from primary job activities as the 

opportunity cost of engaging in other 

activities is commonly accepted practice 

by economists. 

NMFS recognizes that the training 

provided by workshops is valuable to 

fishermen and may offset some 

unquantifiable portion of the 

opportunity costs that were estimated. 

The opportunity cost estimates provided 

in the Draft Consolidated HMS FMP 

were considered to be upper bounds on 

the potential economic costs associated 

with attending workshops. Information 

quantifying the economic value of time 

spent at the workshops is not currently 

available to further refine the upper 

bound cost estimates used in the 

economic analysis of workshop 

alternatives. 

ii. Atlantic Shark Identification 

Workshops 

Comment 14: NMFS received several 

comments in support of alternative A9, 

mandatory Atlantic shark identification 

workshops for all shark dealers. Those 

comments include: dealers should be 

required to attend the shark 

identification workshops; if shark 

dealers cannot properly identify a fish, 

their license and ability to be a dealer 

should be permanently revoked; 

workshops for species identification are 

generally unnecessary for commercial 

fishermen although shark identification 

workshops may be necessary for dealers 

or recreational fishermen; NMFS needs 

to rename the Identification Workshops 

as being Shark and not HMS, since only 

shark dealers are expected to be in 

attendance and certified at identifying 

sharks, not tunas; NMFS should have 

two days of training, one mandatory 


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(dealers) and one voluntary (fishermen, 

public, etc); workshops give the dealer 

a good housekeeping seal of approval; 

NMFS should consider prioritizing the 

certification of shark dealers because the 

universe is so large; prioritization of 

shark dealers could be based upon a 

minimum annual purchase of shark 

products; and, EPA supported 

alternative A9, stating that accurate 

species identification is necessary for 

compliance with HMS fishery 

regulations, including avoidance of 

prohibited species, maintaining quota 

limits, and also for accurate data 

collection. 

Response: Under the selected 

alternative, A9, NMFS renamed the 

HMS identification workshops as 

Atlantic shark identification workshops 

because only federally permitted shark 

dealers will be required to attend the 

workshops and receive certification. 

Identification training will be focused 

on various species of sharks likely to be 

encountered by the dealer in both whole 

and dressed form. These mandatory 

identification workshops will improve 

the ability of shark dealers to identify 

sharks to the species level and will 

improve the data collected for quota 

monitoring, stock assessments, and 

decision making processes for 

formulating appropriate fishery 

management strategies. While 

mandatory for shark dealers, these 

workshops will be open to other 

interested individuals, to the extent 

possible. Workshop locations will be 

based on dealer permit addresses. A 

schedule of workshops will be available 

in advance to allow dealers to select the 

workshop most convenient to their 

schedule. The Agency may provide an 

opportunity for the industry to schedule 

one-on-one training at the expense of 

the individual (i.e., trainer costs), if they 

are unable to attend any of the 

previously scheduled workshops. 

Comment 15: NMFS received several 

comments concerned about the 

effectiveness of the Atlantic shark 

identification workshops for only shark 

dealers. The comments include: limiting 

HMS identification workshops to 

dealers only will mean proper species 

identification will come too late for 

prohibited species such as dusky sharks 

and such a strategy will not address 

problems with recreational compliance. 

NMFS should expand the required 

audience at the HMS identification 

workshops and/or expand the scope of 

the protected species workshops to 

include identification and safe release of 

prohibited shark species; the 

identification workshop for dealers only 

is not enough. It will help with data 

collection and stock assessments, but it 

will not help with conservation; and, 

the Agency should focus its efforts on 

the directed shark fishermen that are 

actually landing sharks and dealers with 

90 percent of the catch. 

Response: Under the selected 

alternatives, Atlantic shark 

identification workshops will be 

mandatory for federally permitted shark 

dealers, but, to the extent possible, these 

workshops would be open to other 

interested individuals (e.g., individuals 

participating in the shark fishery, port 

agents, law enforcement officers, state 

shark dealers, and recreational 

fishermen) on a voluntary basis. Under 

this rule, federally permitted shark 

dealers will be required to take this 

training in an effort to reduce 

unclassified shark landings and improve 

species-specific landings data. 

Improvements in shark dealer data will 

improve existing quota monitoring 

programs as well as improve the 

accuracy of future stock assessments. 

With improved shark identification, 

dealers will be more accountable for the 

sharks purchased, potentially 

discouraging the purchase of prohibited 

species. If there is no market for 

prohibited species, fishermen may 

modify their behavior and safely release 

any incidental catch of prohibited 

species. To train and certify the greater 

than 25,000 anglers that participate in 

the HMS recreational fishery exceeds 

the Agency’s resources at this time. 

While commercial and recreational 

shark fishermen will not be required to 

attend the Atlantic shark identification 

workshops, to the extent possible the 

workshops will be open to anyone who 

wishes to attend and receive 

certification. In the future, additional 

actions may be taken to improve the 

data collected from the HMS 

recreational industry. 

Comment 16: NMFS received 

comments on Alternative A15, 

mandatory attendance at HMS 

identification workshops for all HMS 

Angling category permit holders. Those 

comments include: mandatory 

attendance for all HMS Angling category 

permit holders would be a substantial 

undertaking; HMS identification 

workshops should be mandatory for all 

fishermen that land sharks; HMS 

Angling category permit holders should 

also have to attend because they are the 

primary misidentification and nonreporting problem; most commercial 

fishermen know how to identify species; 

and, some of the species identification 

problem is an angler problem. 

Response: At this time, Atlantic shark 

identification workshops will not be 

required for HMS Angling category 

permit holders. Under this rule, all 

federally permitted shark dealers will be 

required to attend the Atlantic shark 

identification workshops. The dealer’s 

ability to renew a Federal dealer permit 

will be conditioned upon the successful 

completion of the workshop. The 

purpose of the Atlantic shark 

identification workshops is to improve 

the data collected from the fishery, 

thereby improving quota monitoring 

and stock assessments. Dealer reports 

are an important data source for quota 

monitoring and management decisions; 

and therefore, these workshops will 

have greater impact on improving the 

accuracy of the shark species 

identification. While the recreational 

fishery also contributes to shark 

misidentification, mandatory attendance 

for the angling community would not 

resolve the data quality issues 

associated with commercial vessel 

logbooks and dealer reports. Thus, quota 

monitoring and commercial regulatory 

compliance would not benefit from 

mandatory angler attendance as they 

would under mandatory shark dealer 

certification. Commercial and 

recreational shark fishermen are not 

required to attend the Atlantic shark 

identification workshops, but to the 

extent possible, the workshops will be 

open to anyone who wishes to attend 

and receive certification. The money 

and time required to track and link 

permits to the workshop certification, to 

hold an appropriate number of 

workshops to certify all HMS anglers 

permit holders (over 25,000 

individuals), and to enforce the 

workshop requirement for all HMS 

angler permit holders currently exceed 

the Agency’s resources. In the future, 

additional actions may be taken to 

improve the data collected from the 

HMS recreational industry. 

Comment 17: NMFS received two 

comments about mandatory workshops 

for state shark dealers. Those comments 

are: HMS identification workshops 

should be held for state dealers to 

encompass the entire universe of dealers 

reporting unclassified sharks; and, 

NMFS needs more information on state 

shark landings. The Agency is wasting 

the industry’s time requiring the wrong 

people to attend these workshops. 

Response: NMFS does not have 

jurisdiction over state permitted shark 

dealers and cannot require their 

attendance at Federal workshops. 

However, to the extent possible, the 

Atlantic shark identification workshops 

would be open to other interested 

individuals, including state shark 

dealers, on a voluntary basis. To 

purchase sharks from a federally 

permitted vessel, a state shark dealer 

must also possess a Federal shark dealer 


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permit and, therefore, will be required 

to attend the workshops. 

Comment 18: NMFS should require 

port agents to attend these workshops to 

improve their shark identification skills. 

Law enforcement needs to learn how to 

identify sharks. 

Response: This action does not 

require port agents or law enforcement 

to attend the Atlantic shark 

identification workshops. The intent of 

this action is to reduce the number of 

unknown sharks in the shark dealer 

reports; therefore shark dealers or their 

proxy are required to attend the 

workshop. To the extent practicable, the 

Agency will notify law enforcement 

officials and port agents of workshops in 

their respective regions and encourage 

them to attend these workshops to 

improve their identification skills, 

especially since port agents are often 

responsible for the collection of 

biological information on many species 

that the Agency manages. Furthermore, 

law enforcement officials also need to 

identify sharks to the species level to 

enforce regulations related to seasons, 

minimum sizes, bag limits, and trip 

limits. Port agents and law enforcement 

officials are required to attend rigorous 

training on the identification of HMS 

regulated species; however, the material 

that will be covered in these workshops 

might provide additional information on 

morphological characteristics to 

facilitate shark identification in various 

conditions at landing (i.e., no fins, no 

head, several days since landing, and 

gutted). Because port agents and law 

enforcement do receive some 

identification training and are not 

directly involved with reporting shark 

landings, the Atlantic shark 

identification workshops are only 

mandatory for shark dealers at this time. 

Comment 19: It is very difficult to sell 

‘‘unknown’’ sharks in the market and 

sharks are being listed as unclassified 

because it is the path of least resistance 

when they are reporting. 

Response: Landings data from 2004 

indicate that the number of unclassified 

large coastal, small coastal, and pelagic 

shark landings was 19 percent, 0.3 

percent, and 53 percent of total shark 

landings. These percentages indicate 

that a significant number of sharks enter 

the market as unclassified, despite 

regulations that require species-specific 

reporting by vessel owners and dealers. 

NMFS does not know if sharks are being 

listed as unclassified because fishermen 

and dealers are unable to identify them, 

to circumvent restrictions, or because it 

is the most expeditious manner to 

process the catch as the commenter 

suggests. However, NMFS believes that 

mandatory Atlantic shark identification 

workshops will improve the ability of 

shark dealers to identify sharks to the 

species level. NMFS anticipates that 

these workshops will improve the data 

collected to assess stock status and 

decision making processes for 

formulating appropriate fishery 

management strategies. 

Comment 20: NMFS received 

comments on the workshop materials 

and the need to hold shark 

identification workshops. These 

comments include: NMFS will need 

pictures of all the shark species to teach 

proper identification. Those pictures 

will need to include pictures of dressed 

fish, whole fish, and fins of each 

species, especially prohibited species; 

and, NMFS should consider enlisting 

members of the industry to help with 

these workshops. 

Response: NMFS would coordinate 

with local shark dealers to have some 

dressed sharks available for each 

workshop. If the workshops are held 

after a closure or in an area where no 

carcasses are available, NMFS would 

use other tools, such as photo 

presentations and dichotomous keys, to 

present methods for identifying dressed 

sharks to the species level. The Agency 

intends to use a combination of dressed 

sharks, fins, photo presentations, and 

dichotomous keys to improve speciesspecific shark carcass identification. 

The success of the Atlantic shark 

identification workshops will depend 

upon cooperation between the Agency 

and the industry. 

Comment 21: Please consider Houma 

as a location to conduct the shark dealer 

workshops, if selected. 

Response: NMFS would not be able to 

hold workshops at every shark dealer 

facility; however, the Agency examined 

the number and location of shark 

dealers in each region, and would work 

to provide workshops in areas that are 

convenient to the greatest number of 

people. A preliminary evaluation of 

dealers in the southern Louisiana region 

shows that Houma proportionally does 

not land the most sharks in the region, 

but is central to other locations. As 

suggested, the Agency will consider 

Houma as a potential site for an Atlantic 

shark identification workshop. 

Comment 22: NMFS received several 

comments on allowing a proxy to attend 

the Atlantic shark identification 

workshops for the shark dealers. Those 

comments are: NMFS should allow a 

purchase agent proxy to attend instead 

of the shark dealer permit owner; NMFS 

needs to consider all of the truck drivers 

operating under the single NMFS shark 

dealer permit who purchase sharks 

products from satellite locations; if a 

shark dealer loses his proxy due to 

unforeseen circumstances, NMFS 

should have some flexibility on 

allowing the fishhouse to continue 

operating until a replacement is found 

and certified; a trained and certified 

dealer representative must be present at 

all times whenever HMS catches are 

offloaded to be responsible for ensuring 

that all HMS landings are monitored 

and properly documented; dealers 

should be allowed more than one proxy 

if requested; ‘‘Dockside Technicians’’

should be allowed as a proxy for the fish 

dealer who may not be present during 

vessel pack-outs; the DEIS/proposed 

rule has some good ideas for proxies, 

but NMFS will need to be careful about 

a lapse between proxies, should the 

individual leave the business; and, there 

must be a fast track way to get certified 

if a proxy leaves, such as online 

certification. 

Response: Under this final rule, all 

federally permitted shark dealers will be 

required to obtain an Atlantic shark 

identification workshop certification. 

NMFS encourages shark dealers to send 

as many proxies as necessary to train 

staff members responsible for shark 

species identification within the 

dealer’s business. Federally permitted 

shark dealers will be responsible for 

ensuring that the appropriate 

individuals receive the proper training 

in shark identification. Federally 

permitted shark dealers will be 

encouraged to share the workshop 

information and training with 

individuals that were unable to attend 

the workshop. Multiple proxies for each 

federally permitted shark dealer will 

better ensure that every dealer has at 

least one person on staff who possesses 

workshop certification and the skills 

necessary to properly identify sharks if 

another proxy’s employment is 

terminated. The schedule for Atlantic 

shark identification workshops will be 

available in advance to allow dealers 

and proxies to select the workshop 

closest to them and most convenient to 

their schedule. If a dealer or proxy is not 

able to attend a scheduled workshop, 

NMFS will consider one-on-one training 

at the expense of the individual. These 

one-on-one training sessions could also 

accommodate the replacement of a 

proxy whose employment was 

terminated on short notice. 

iii. Other Workshop Related Comments 

Comment 23: NMFS received several 

comments on outreach beyond the two 

workshops. These comments included: 

regardless of who is required to attend 

the workshops, the Agency should do 

at-sea identification; a field guide 

should be sent out to all HMS permit 

holders; NMFS should provide 


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waterproof field identification materials; 

manuals should be developed on the 

proper billfish and tuna release 

handling procedures; and, HMS 

Identification Guide should be required 

on board permitted vessels and in the 

office of HMS permitted fish dealers. 

The Guide could also be made available 

online. 

Response: The HMS website (http:// 

www.nmfs.noaa.gov/sfa/hms/) currently 

provides a variety of information on 

several HMS and protected species, 

including a tutorial on sea turtle 

identification and handling, and a link 

to purchase the waterproof HMS 

identification guide from Rhode Island 

Sea Grant, as well as the safe handling 

and release protocols and placards in 

three different languages (English, 

Spanish, and Vietnamese). Curriculum 

for the Atlantic shark identification 

workshops is in development. However, 

current plans include distributing 

waterproof identification materials at 

the protected species workshops, as 

well as distributing and training 

participants to use a key for 

distinguishing species-specific features 

at Atlantic shark identification 

workshops. NMFS recommends that 

these materials be readily accessible in 

dealer offices and onboard fishing 

vessels, and encourages workshop 

participants to share knowledge gained 

with their crew and other employees. 

While NMFS would like to distribute 

the HMS guide to all HMS permit 

holders, the resources to do so are not 

currently available. 

Comment 24: NMFS received several 

comments about providing an expedited 

means for receiving the training, 

certification, and renewal. Those 

comments include: there should be 

internet training and certification; can 

HMS identification workshops and 

renewals occur online?; certification 

over the internet might not suffice, 

however, recertification might be 

possible; to facilitate normal turnover, 

review and busy schedules, NMFS 

could conduct training via the internet 

and/or by mail; NMFS needs to provide 

a convenient way for new captains to be 

certified prior to their first trip; initial 

certification for new vessel operators 

must be conveniently available, such as 

a self-course over the internet or 

overnight mail; vessel operations should 

not be held up unnecessarily; NMFS 

needs to make sure to develop a 

streamlined approach to keeping this 

certification effort simple and 

convenient so as to not to be a burden 

to all folks participating; hands-on 

training is important; and, the first time 

going through the training must occur in 

the workshop. 

Response: The Agency’s priority is to 

make the workshops as successful and 

effective as possible. Due to the nature 

of workshop subject matter, hands-on 

training and interaction with the 

workshop leader is vital for initial skill 

development and certification for the 

protected species safe handling, release, 

and identification workshops, as well as 

the Atlantic shark identification 

workshops. Once the first round of 

certifications are complete, NMFS will 

explore alternative means for renewing 

permits, including online or mail-in 

options. The Agency also hopes to 

develop an online program that will 

provide up-to-date information 

regarding HMS identification and 

protected species handling techniques. 

To facilitate coordination between 

workshops and regular business 

activities, NMFS plans to do a focused 

mailing to permit holders to ensure that 

the workshop times and locations are 

known in advance. This will allow 

workshop participants to plan workshop 

attendance accordingly and prevent 

lapses in fishing activities. 

Comment 25: How did NMFS analyze 

the economic impacts of attending these 

workshops? 

Response: NMFS conducted an 

opportunity cost analysis to determine 

the economic costs associated with 

attending the various workshop 

alternatives. This analysis used 

economic information obtained from the 

HMS logbook, specifically the economic 

costs section that is required to be 

completed by selected vessels. For 

vessels that completed the economic 

costs section of the HMS logbook in 

2004, revenues per trip were estimated 

by taking the number of fish caught per 

trip, multiplying the number of fish by 

average weights for each species 

harvested, and multiplying the total 

weights for each species by average 

prices for each species as reported in the 

dealer landings system. The costs 

reported for each trip were then 

subtracted from the estimated revenue 

for each trip. Then the number of days 

at sea as reported in logbooks was used 

to determine the average net revenue 

per day at sea for each trip taken. 

Finally, the information provided on 

crew shares was used to allocate the net 

revenue per day at sea to owner, 

captain, and crew. Information from the 

HMS permits database was then used to 

estimate the potential number of 

participants in each of the workshop 

alternatives. Since information on the 

number of captains per permitted vessel 

was not available, NMFS conservatively 

estimated that there could be two 

captains per permit for PLL vessels and 

one captain for all others. Net revenues 

per day for owners, captains, and crew 

were then multiplied by the number of 

participants expected for each workshop 

alternative to estimate the opportunity 

cost for a one day workshop. The 

economic impacts (i.e., out of pocket 

cash costs) associated with attending 

workshops is likely to be less than the 

economic opportunity costs estimated 

since NMFS plans on scheduling 

workshops on less productive fishing 

days to avoid lost time at sea. 

Comment 26: If training and 

certification is mandated, it is essential 

that NMFS ensure that adequate funding 

and personnel resources are dedicated 

to develop and fully support all program 

facets. 

Response: The Agency agrees and is 

fully aware of the ramifications of these 

workshops and the need to implement 

them successfully. Numerous 

individuals, with a variety of expertise 

and backgrounds have been involved in 

the implementation of the voluntary 

workshops to date, and will be involved 

in any future mandatory workshops, 

including: shark identification and 

biology, fishing gear technology and 

deployment, safe release and handling 

of protected resources, vessel 

permitting, fisheries law enforcement, 

and shark carcass identification. 

Comment 27: NMFS should consider 

how to ensure compliance with this 

requirement and should have a plan to 

measure the effectiveness of the 

workshops. 

Response: Successful completion of 

both workshops will be linked to the 

renewal of the owner’s or dealer’s HMS 

permits. Longline and gillnet vessel 

owners must be certified in the safe 

release and disentanglement protocols 

before they can renew their limited 

access permits. Additionally, longline 

and gillnet vessels may not engage in 

fishing operations without a certified 

operator onboard, as well as proof of 

owner and operator certification. 

Similarly, Federal shark dealers must be 

certified in shark identification, or have 

a certified employee, to renew their 

dealer permit. NMFS will gauge the 

success of these requirements by 

monitoring compliance with the sea 

turtle release and disentanglement 

performance standards established in 

the 2004 BiOp, as well as by monitoring 

the number of unclassified sharks 

reported by Federal dealers. 

Comment 28: NMFS received 

comments suggesting that the Agency 

provide the workshop materials in other 

languages, such as Spanish and 

Vietnamese, as well as English. 

Response: NMFS acknowledges the 

diversity of HMS fishery participants, 

and will make workshop materials 


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accessible to as many of its constituents 

as possible. While the workshops will 

be conducted in English, NMFS hopes 

to provide workshop materials in other 

languages for distribution at and outside 

of the workshops. Placards of sea turtle 

handling and release guidelines are 

currently available in English, Spanish, 

and Vietnamese. To the extent 

practicable, the Agency will work to 

develop shark identification materials in 

these languages as well. 

Comment 29: NMFS received several 

comments related to alternative A17, 

Compliance with and Understanding of 

HMS Regulations. Those comments 

include: compliance and increased 

understanding of HMS regulations 

could be addressed by mailing an 

updated HMS Compliance Guide to 

each HMS recreational and commercial 

permit holder each year; workshops on 

the regulations are unnecessary as long 

as brochures are available; the proposed 

workshops should cover new regulatory 

requirements, such as the new PLL TRT 

regulations; there are no alternatives in 

the Draft Consolidated HMS FMP for 

workshops on HMS regulations. The 

GMFMC recommends that an interactive 

web-based tutorial be available to 

improve the understanding and 

compliance with HMS regulations. This 

training should be mandatory for 

commercial captains; and, NMFS 

should consider mandatory recreational 

compliance workshops because 

commercial vessels adhere to many U.S. 

regulations but less emphasis is placed 

upon recreational compliance. 

Response: During scoping, NMFS 

explored an alternative that focused on 

enhancing compliance with, and 

understanding of, HMS regulations 

using Agency sponsored workshops. 

NMFS received comments noting that 

mandatory workshops need to be 

prioritized due to the time and cost to 

those who must attend. Furthermore, 

comments were received in support of 

continuing the current methods of 

disseminating information pertaining to 

HMS regulations (e.g., Annual HMS 

Compliance Guide) rather than 

spending Federal dollars to conduct 

workshops on the regulations at this 

time. Advisory Panel members 

supported focusing on mandatory 

requirements (e.g., workshops required 

under BiOps and other mandates) first, 

and then following up with additional 

outreach materials to meet regulatory 

informational needs. NMFS already 

disseminates this type of information 

and, because this information can be 

distributed to participants attending 

NMFS sponsored workshops, this 

alternative was not further analyzed in 

the Consolidated HMS FMP. 

Compliance guides and brochures can 

be obtained from the HMS website 

(http://www.nmfs.noaa.gov/sfa/hms/). 

Under this final rule, NMFS requires 

owners and operators to attend 

mandatory protected species safe 

handling, release, and identification 

workshops. Furthermore, shark dealers 

(or their designated proxy(ies)) must 

attend Atlantic shark identification 

workshops. In doing so, NMFS may 

consider the use of web-based training 

as a suitable media for disseminating 

training information following an initial 

workshop. 

B. Time/Area Closures 

i. New Closures 

Comment 1: Alternative B2(a) 

indicates that there would be ecological 

benefits to leatherback sea turtles and 

blue and white marlin, yet this 

alternative was given cursory treatment. 

Response: NMFS comprehensively 

analyzed the ecological and economic 

impacts of all alternatives, including 

alternative B2(a), in the Draft and Final 

Consolidated HMS FMPs, consistent 

with the analytical requirements of 

NEPA, the Magnuson-Stevens Act, 

ATCA, and other laws. In the Draft 

Consolidated HMS FMP, NMFS 

investigated potential changes in 

bycatch and discards with and without 

the redistribution of fishing effort for all 

the time/area closure alternatives 

considered. For alternative B2(a), NMFS 

evaluated a total of three scenarios of 

redistributed effort (as well as a fourth 

scenario without redistribution of 

effort), each of which had different 

assumptions regarding how fishing 

effort would be redistributed into open 

areas. The first scenario assumed that 

fishing effort (i.e., hooks) from 

alternative B2(a) would be displaced 

into all open areas. The second scenario 

assumed all fishing effort would only be 

redistributed within the Gulf of Mexico. 

The third scenario assumed that fishing 

effort would be displaced within the 

Gulf of Mexico and into an area (i.e., 

Area 6) where the majority of vessels 

with Gulf of Mexico homeports have 

been reported fishing during 2001 - 

2004. 

All three of these scenarios predicted 

that bycatch and discards would 

increase for at least one of the species 

considered. For instance, under the first 

scenario, NMFS predicted an increase in 

loggerhead sea turtle interactions (7.9 

percent or 14 turtles/over three years; 

annual numbers may be obtained by 

dividing by three), bluefin tuna (BFT) 

discards (10.3 percent or 166 discards/ 

over three years), swordfish discards 

(4.4 percent or 1,635 discards/over three 

years), yellowfin discards (3.0 percent 

or 166 discards/over three years), and 

bigeye tuna discards (11.6 percent or 

117 discards/over three years). Under 

the second scenario of redistributed 

effort (effort only redistributed in the 

Gulf of Mexico), NMFS predicted 

increases in sailfish discards (1.8 

percent or 18 discards/over three years), 

spearfish discards (3.3 percent or 14 

discards/over three years), pelagic shark 

discards (0.3 percent or 112 discards/ 

over three years), large coastal shark 

discards (3.6 percent or 598 discards/ 

over three years), swordfish discards 

(4.4 percent or 1,635 discards/over three 

years), yellowfin discards (22.3 percent 

or 1,224 discards/over three years), 

bigeye tuna discards (0.4 percent or 4 

discards/over three years), and BAYS 

tuna discards (1.0 percent or 91 

discards/over three years). Finally, 

under the third scenario (redistribution 

in the Gulf of Mexico and Area 6), 

NMFS predicted increases in sailfish 

(4.7 percent or 61 discards/over three 

years), pelagic sharks (4.4 percent or 834 

discards/over three years), BFT discards 

(1.6 percent or 35 discards/over three 

years), and BAYS tuna discards (0.7 

percent or 70 discards/over three years). 

Given the potential negative ecological 

impact of B2(a) under all three 

redistribution of effort scenarios, NMFS 

is not implementing alternative B2(a) at 

this time. 

Comment 2: NMFS decided against 

any new closures to protect sea turtles, 

billfish, and other overexploited species 

at this time because there is no closure 

that will benefit all species. Closures 

should not be rejected because they do 

not ‘‘solve’’ the bycatch problem on 

their own. Rather, they should be 

coupled with other sensible measures to 

ensure that all species are receiving the 

protection they need to recover and 

maintain healthy populations. 

Response: NMFS agrees that closures 

can be combined with other measures to 

achieve management objectives. 

However, NMFS did not reject closures 

because there was not a closure that 

benefited all species. To the contrary, 

NMFS is not preferring the closures 

because, in part, there were indications 

that the closures could actually result in 

an increase in bycatch to the detriment 

of some species with the consideration 

of redistributed effort. Additionally, 

NMFS does not prefer implementing 

new closures at this time, other than the 

Madison-Swanson and Steamboat 

Lumps Marine Reserves, for a number of 

other reasons, including those discussed 

below in this response. All of the data 

used in the time/area analyses were 

based on J-hook data. The Northeast 

Distant experiment suggested that circle 


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hooks likely have a significantly 

different catch rate than J-hooks; further 

investigations are required to determine 

the potential impact of any new time/ 

area closures. The final logbook data 

recently became available. NMFS is 

beginning to analyze that data. NMFS 

also continues to monitor and analyze 

the effect of circle hooks on catch rates 

and bycatch reduction as well as assess 

the cumulative affect of current time/ 

area closures and circle hooks. NMFS 

does not prefer to implement new 

closures until the effect of current 

management measures, and potential 

unanticipated consequences of those 

management measures, can be better 

understood. Second, NMFS is awaiting 

additional information regarding the 

status of the pelagic longline (PLL) fleet 

after the devastating hurricanes in the 

Gulf of Mexico during the fall of 2005. 

A majority of the PLL fleet was thought 

to be severely damaged or destroyed 

during the 2005 hurricane season. The 

amount of PLL fishing effort, especially 

within the Gulf of Mexico, will be 

assessed in the summer of 2006 when 

data quality control procedures on the 

2005 HMS logbook data are complete. 

Until NMFS can better estimate the 

current fishing effort and potential 

recovery of the PLL fleet, it is premature 

to implement any new time/area 

closures. Third, a number of stock 

assessments will be conducted during 

2006 (LCS, blue marlin, white marlin, 

north and south swordfish, eastern and 

western BFT, and large coastal sharks). 

NMFS is waiting on the results of these 

stock assessments to help determine 

domestic measures with regard to 

management of these species. Once 

NMFS has this updated information, 

NMFS will consider additional 

management measures, potentially for 

all gear types, to help reduce bycatch 

and discard rates. NMFS is also trying 

to assess how protecting one age class 

at the potential detriment of other age 

classes will affect the fish stock as a 

whole. For instance, how will protecting 

spawning BFT help rebuild the stock if 

it results in increased discards of nonspawning adults, juvenile, and subadult BFT along the eastern seaboard? 

More information is needed to further 

understand how to manage this species 

given its complex migratory patterns, 

life history, and age structure. NMFS is 

also considering developing incentives 

that would dissuade fishermen from 

keeping incidentally caught BFT, 

particularly spawning BFT, in the Gulf 

of Mexico. This may involve research on 

how changes in fishing practices may 

help reduce bycatch of non-target 

species as well as the tracking of 

discards (dead and alive) by all gear 

types. In addition, sea surface 

temperatures in the Gulf of Mexico have 

recently been thought to be associated 

with congregations of BFT and putative 

BFT spawning grounds in the Gulf of 

Mexico (Block, pers. comm.). NMFS 

intends to investigate the variability 

associated with sea surface temperatures 

as well as the temporal and spatial 

consistency of the association of BFT 

with these temperature regimes. By 

better understanding what influences 

the distribution and timing of BFT in 

the Gulf of Mexico, NMFS can work on 

developing tailored management 

measures over space and time to 

maximize ecological benefits while 

minimizing economic impacts to the 

extent practicable. 

Comment 3: NMFS received several 

comments regarding additional closures 

to consider including: NMFS should 

consider a time/area closure for 

longlining from the 35th parallel to the 

41st parallel, from the 30 fathom line to 

the 500 fathom line, from June 15 to 

September 30; NMFS should consider 

longline closures around San Juan, 

Puerto Rico and other areas around 

Puerto Rico; NMFS should pressure the 

states north of the North Carolina closed 

area to close their state waters during 

April through July 31 to protect juvenile 

sandbar sharks; since the sandbar shark 

HAPC includes a major U.S. nursery 

area for this species, NMFS should close 

the Federal waters out to 10 fathoms 

from April to July 31 each year; NMFS 

should reevaluate its decision not to 

close the Northeast Central statistical 

area proposed as Alternative A14 in the 

June 2004 SEIS; and, Georgia CRD 

requests either the closure of the EEZ off 

Georgia to gillnet gear to facilitate state 

enforcement and management efforts or 

the requirement for shark gillnet vessels 

to carry VMS year-round to facilitate 

Georgia’s cooperative state/Federal 

enforcement efforts. 

Response: While additional areas 

could be considered for time/area 

closures, NMFS considered a range of 

different closures that encompassed the 

major areas of bycatch for the greatest 

number of species of concern. Due to 

the number of bycatch concerns 

regarding the pelagic longline fishery 

and the availability of data, most of the 

analyses for potential closures focused 

on the pelagic longline fishery. 

Although some alternatives, such as 

preferred alternative B4, affect 

additional HMS fisheries such as the 

recreational fishery. The majority of the 

areas were initially selected by plotting 

and examining the HMS logbook and 

Pelagic Observer Program (POP) data 

from 2001 - 2003 to identify areas and 

times where bycatch was concentrated. 

When identifying areas to consider, 

NMFS also took into account 

information received in a petition for 

rulemaking to consider an additional 

closure (alternative B2(c)) to reduce BFT 

discards in a reported spawning area in 

the Gulf of Mexico (Blue Ocean Institute 

et al., 2005; Block et al., 2005), and a 

settlement agreement relating to white 

marlin, which was approved by the 

court in Center for Biological Diversity 

v. NMFS, Civ. Action No. 04–0063 

(D.D.C.). Using the preferred alternative 

B5, NMFS may consider additional 

closures, including closures for juvenile 

sandbar sharks and closures for other 

gear types, including gillnets and/or 

recreational gear, in future rulemakings, 

as needed. 

Comment 4: NMFS received several 

comments in favor of maintaining 

existing time/area closures. These 

comments included: time/area closures 

should be used to promote conservation 

of all HMS species; marine sanctuaries 

need to be established for all species of 

fish; these areas need to remain closed 

until the fishery is rebuilt to the 1960s 

levels that existed prior to the 

overcapitalization of this fishery; as a 

result of the existing closures, overall 

discards have declined by as much as 50 

percent so NMFS should continue to 

expand the existing closures; the 

reductions in bycatch as a result of the 

existing closures benefit a wide range of 

species; current closed areas are 

effective, based upon recent increases in 

swordfish size and weight in the deepwater recreational swordfish fishery; 

and suggestions by the industry that the 

closed area goals have been met because 

swordfish are rebuilt ignore the broader 

purpose and benefit of the closures. 

Response: NMFS agrees that the 

existing closures have effectively 

reduced the bycatch of protected species 

and non-target HMS, and have provided 

positive ecological benefits. NMFS 

prefers to keep the existing closures in 

place at this time. For example, the 

overall number of reported discards of 

swordfish, BFT, and bigeye tunas, 

pelagic sharks, blue and white marlin, 

sailfish, and spearfish have all declined 

by more than 30 percent. The reported 

discards of blue and white marlin 

declined by about 50 percent, and 

sailfish discards declined by almost 75 

percent. The reported number of sea 

turtles caught and released declined by 

almost 28 percent. However, these 

analyses are based on J-hook data, and 

the fishery is required to use circle 

hooks. It is possible that the impact of 

such closures since implementation of 

circle hooks may be greater in ecological 

benefits than expected. If this happens, 


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NMFS may not need to implement new 

closures and may be able to reduce 

existing closures. NMFS currently only 

has final, quality controlled HMS 

logbook data on the catch associated 

with circle hooks from July through 

December of 2004. NMFS anticipates 

having final, quality controlled 2005 

HMS logbook data in the summer of 

2006. At that time, NMFS will examine 

and analyze the effect of circle hooks on 

catch rates and bycatch reduction. Any 

changes to the existing closures would 

occur through a proposed and final 

rulemaking using the criteria in the 

preferred alternative B5. 

Comment 5: NMFS received a number 

of comments in opposition to closures 

including: the effectiveness of time/area 

closures as a management tool to 

address bycatch issues has been 

exhausted; bycatch measures other than 

time/area closures should be 

considered; closures are not 

conservation, but reallocation to 

prohibit one hook and line gear 

(especially, circle hook gear) while 

allowing another hook and line gear 

(especially, more harmful J-style hook 

gear and live baiting); these areas were 

closed to rebuild the now fully rebuilt 

swordfish stock; an alternative to a full 

area closure could be to conduct an 

experimental fishery to test gear 

modifications - if the modifications do 

not work then put in a full closure; and 

the pelagic longline industry cannot 

withstand additional time/area closures. 

Response: NMFS does not believe that 

the effectiveness of time/area closures as 

a management tool has been exhausted. 

The existing closures have effectively 

reduced the bycatch of protected species 

and many non-target HMS, and have 

provided positive ecological benefits. 

For example, the overall number of 

reported discards of swordfish, BFT and 

bigeye tunas, pelagic sharks, blue and 

white marlin, sailfish, and spearfish 

have all declined by more than 30 

percent. The reported discards of blue 

and white marlin declined by about 50 

percent, and sailfish discards declined 

by almost 75 percent. The reported 

number of sea turtles caught and 

released declined by almost 28 percent. 

Thus, the current time/area closures 

have had positive ecological impact by 

reducing the overall bycatch of nontarget and protected species. However, 

NMFS recognizes that the current 

closures have had an impact on retained 

species’ landings as well. For example, 

from 1997 to 2003, the number of 

swordfish kept declined by nearly 28 

percent, the number of yellowfin tuna 

kept declined by 23.5 percent, and the 

total number of BAYS kept (including 

yellowfin tuna) declined by 25.1 

percent. Such declines in landings have 

resulted in negative economic impacts 

for the fleet and may explain the overall 

decline in effort by the Atlantic PLL 

fishery from the pre- to post-closure 

period. Thus, while time/area closures 

play an important part in resource 

management, NMFS does not prefer to 

implement new closures, except for the 

Madison-Swanson and Steamboat 

Lumps Marine Reserves, until NMFS 

can assess the cumulative effect of the 

current time/area closures and circle 

hooks. In addition, NMFS is waiting for 

additional information regarding the 

status of the PLL fleet after the 

devastating hurricanes in the Gulf of 

Mexico during the fall of 2005. A 

portion of the PLL fleet was thought to 

be severely damaged or destroyed 

during the 2005 hurricane season. Until 

NMFS can better estimate the current 

fishing effort and potential recovery of 

the PLL fleet, NMFS believes that it is 

premature to implement any new time/ 

area closures, particularly on the PLL 

fleet. 

ii. BFT/Gulf of Mexico 

Comment 6: NMFS received 

comments regarding time/area closures 

to protect BFT spawning areas in the 

Gulf of Mexico (Alternatives B2(c) and 

B2(d)). Some of these comments 

suggested NMFS should consider 

different months or permutations of 

months between January and August. 

Other comments included: NMFS 

should implement additional measures 

to protect the Atlantic BFT biomass, 

especially spawning fish in the Gulf of 

Mexico; NMFS should consider closing 

the Gulf of Mexico to protect spawning 

BFT and analyze different time periods 

in combination with the northeast 

closures during months of high discards 

or high CPUE that might address effects 

on loggerhead sea turtles; an area south 

of Louisiana surrounding known BFT 

spawning areas should be closed to all 

longline fishing for a reasonable period 

of time — at a minimum this should 

include the area identified in 

Alternative B2(c); the study in the 

journal ‘‘Nature’’ firmly establishes the 

time and location of the spawning 

season and affords NMFS the 

opportunity to close a hot spot based on 

the best available science; Japan has 

recommended a longline closure of the 

entire Gulf of Mexico at ICCAT; NMFS 

should immediately initiate interim or 

emergency action to close the longline 

fishery in the Gulf of Mexico, starting in 

January of 2006 that would be effective 

for six months each year from January 

through June; NMFS should explain 

why the ecological benefits of closing 

the longline fishery in the Gulf of 

Mexico during BFT spawning season, as 

described in Alternative B2(c), would be 

minimal; why does NMFS assume that 

a longline closure in the Gulf of Mexico 

would cause a redistribution of effort to 

areas where BFT discards could 

increase; and, what are the positive and 

negative economic consequences of 

allowing longline fishing to continue in 

the Gulf of Mexico during BFT 

spawning season? 

Response: NMFS considered a wide 

range of alternatives ranging from 

maintaining existing closures (No 

Action) to a complete prohibition of PLL 

gear in all areas in order to reduce the 

bycatch and bycatch mortality of nontarget HMS and protected species, such 

as sea turtles, in Atlantic HMS fisheries. 

After comparing the potential bycatch 

reduction for all of the closures that 

NMFS initially considered (see Chapter 

2 of the FEIS for a description of 

alternatives), NMFS chose five closures 

with the highest overall bycatch for 

further analysis. Alternative B2(c), 

closing 101,670 nm2 in the Gulf of 

Mexico from April through June, was 

chosen for analysis in response to a 

petition received by NMFS from several 

conservation organizations requesting 

consideration of a closure of the ‘‘Gulf 

of Mexico BFT spawning area’’ (Blue 

Ocean Institute et al., 2005). The times 

and areas analyzed for alternative B2(c) 

were directly from the petition. 

Alternative B2(d) was chosen for 

analysis in order to determine if any 

other closure, or combination of 

closures, would be more effective at 

reducing bycatch than some of the other 

alternatives considered. The analyses 

indicated that almost all of the closures 

and combinations of closures 

considered for white marlin, BFT, or sea 

turtles would result in a net increase in 

bycatch for at least some of the primary 

species considered when redistribution 

of fishing effort was taken into account. 

In addition, the predicted reduction in 

bycatch when redistribution of fishing 

effort was taken into account was 

typically less than 30 percent for any 

given species with overall reduction in 

the number of individual species being 

very low. 

According to Pelagic Observer 

Program (POP) data, without 

redistribution of effort, alternative B2(c) 

would reduce discards of all non-target 

HMS and protected resources from a 

minimum of 2.3 percent for spearfish to 

a maximum of 25.0 percent for other sea 

turtles (comprised of green, hawksbill, 

and Kemp’s ridley sea turtles). Without 

redistribution of effort, the logbook data 

indicate that alternative B2(c) would 

potentially reduce discards of all of the 

species being considered from a 


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minimum of 0.8 percent for pelagic 

sharks to a maximum 21.5 percent for 

BFT. With redistribution of effort, 

however, bycatch was predicted to 

increase for all species except 

leatherback and other sea turtles. Even 

BFT discards, which showed a fairly 

dramatic decline without redistribution 

of effort, were predicted to increase by 

9.8 percent with redistribution of effort. 

Alternative B2(d) would prohibit the 

use of PLL gear by all U.S. flaggedvessels permitted to fish for HMS in a 

162,181 nm2 area in the Gulf of Mexico 

west of 86 degrees W. long. year-round, 

thus eliminating an area where 

approximately 50 percent of all effort 

(Atlantic, Gulf of Mexico, and 

Caribbean) and 90 percent of all effort 

in the Gulf of Mexico has been reported 

in recent years (2001 - 2003). Without 

the redistribution of effort, the closure 

could have resulted in large reductions 

in all non-target HMS, ranging from a 

10.1 percent reduction in loggerheads to 

83.5 percent reduction in spearfish 

discards. With the redistribution of 

effort, NMFS predicted a decrease in 

discards of blue marlin (20.3 percent or 

497 discards/over three years; annual 

estimates can be obtained by dividing 

by three), sailfish (26.8 percent or 276 

discards/over three years), and spearfish 

(73.3 percent or 276 discards/over three 

years). However, given the size and 

timing of this closure (i.e., year-round), 

NMFS also predicted an increase in 

white marlin discards (0.3 percent or 10 

discards/over three years), loggerhead 

sea turtle interactions (65.5 percent or 

117 turtles/over three years), BFT 

discards (38 percent or 614 discards/ 

over three years), swordfish discards 

(31.9 percent or 11,718 discards/over 

three years), and bigeye tuna discards 

(84.8 percent or 853 discards/over three 

years). 

Other alternatives, such as alternative 

B2(b), which would close a much 

smaller area in the Northeastern United 

States, could have greater benefits in 

terms of the number of BFT discards 

reduced. Although alternative B2(b) is 

not considered a BFT spawning area, 

data from the POP program indicate that 

large fish (>171 cm TL) are present in 

the area. Additionally, there is evidence 

to indicate that the area is utilized as a 

feeding and staging area by BFT prior to 

migrating to the Gulf of Mexico to 

spawn (Block et al., 2005). Hence, while 

NMFS recognizes that the same 

proportion of western spawning BFT 

would not be protected from a closure 

in the Northeast as one in the Gulf of 

Mexico, potentially a small proportion 

of western spawning-size BFT could be 

protected by a closure like B2(b), 

especially given the prevalence of larger 

individuals in Northeast area from the 

POP data. Therefore, a closure like B2(b) 

may be able to protect a few spawningsize individuals as well as prespawners, or sub-adults, which are also 

valuable age classes with regard to the 

stock (although, presumably, there is a 

mixture of eastern and western origin 

fish in this area, and a closure in this 

area may protect sub-adults of western 

as well as eastern origin). Furthermore, 

the total proportion of dead discards in 

the Northeast was similar to the Gulf of 

Mexico. In the Northeast, 48 percent 

(219 out of 461) of all BFT discards from 

2001 - 2003 were discarded dead, 

whereas 53 percent (249 out of 470) of 

all BFT discards from the Gulf of 

Mexico were discarded dead. Given the 

high number of BFT discards in the 

Northeast, a smaller closure there may 

provide similar ecological benefit 

compared with a closure in the Gulf of 

Mexico (depending on post-release 

survival rates in the two areas), and 

would minimize the economic impacts 

on the fleet. 

NMFS will continue to pursue 

alternatives to reduce bycatch of 

spawning BFT. NMFS has adopted all of 

the ICCAT recommendations regarding 

BFT, a rebuilding plan is in place 

domestically for this species, and NMFS 

has implemented measures to rebuild 

this overfished stock. NMFS is currently 

trying to assess how protecting one age 

class at the potential detriment of other 

age classes will affect the fish stock as 

a whole. For instance, how will 

protecting spawning BFT help rebuild 

the stock if it results in increased 

discards of non-spawning adults, 

juveniles, and sub-adult BFT along the 

eastern seaboard? Therefore, more 

information is needed to further 

understand how to manage this species 

given its complex migratory patterns, 

life history, and age structure. As 

described above in Comment 2, NMFS 

is also considering developing 

incentives that would dissuade 

fishermen from keeping incidentally 

caught BFT, particularly spawning BFT 

in the Gulf of Mexico. 

Comment 7: NMFS received several 

comments regarding the biology of 

spawning BFT in the Gulf of Mexico. 

These comments included: the 

management measures currently in 

place do not protect spawning BFT or 

create the conditions necessary for BFT 

to survive, reproduce, and increase their 

population; under current U.S. 

regulations, almost half the BFT landed 

by longline fishermen come from the 

Gulf of Mexico when spawning fish are 

present which results in a significant de 

facto directed fishery; warm water in the 

Gulf of Mexico poses particular risks to 

BFT captured on longline gear due to 

the physiological stress caused in warm, 

low oxygen waters; and the spawning 

fish in this time and place are more 

valuable to the population than at other 

times of year. 

Response: Although NMFS does not 

prefer alternative B2(c), or any other 

closure specific to spawning BFT in the 

Gulf of Mexico at this time, NMFS plans 

to pursue alternatives to reduce bycatch 

in the Gulf of Mexico, especially for 

spawning BFT. Such actions could 

improve international rebuilding efforts 

of this species. NMFS is also 

considering developing incentives that 

would dissuade fishermen from keeping 

incidentally caught BFT, particularly 

spawning BFT, in the Gulf of Mexico. 

This may involve research on how 

changes in fishing practices may help 

reduce bycatch of non-target species as 

well as the tracking of discards (dead 

and alive) by all gear types. In addition, 

sea surface temperatures in the Gulf of 

Mexico have recently been thought to be 

associated with congregations of BFT 

and putative BFT spawning grounds in 

the Gulf of Mexico (Block, pers. comm.). 

NMFS intends to compare sea surface 

temperature data and logbook and/or 

observer data in order to investigate the 

variability associated with sea surface 

temperatures as well as the temporal 

and spatial consistency of the 

association of BFT with these 

temperatures regimes. For this 

investigation, NMFS will use existing 

data and will likely work with scientists 

to collect additional data and/or 

conduct experiments, as needed. By 

better understanding what influences 

the distribution of BFT in the Gulf of 

Mexico, NMFS can tailor management 

measures over space and time to 

maximize ecological benefits while 

minimizing economic impacts, to the 

extent practicable. 

Comment 8: NMFS should outline the 

methods and mortality rates used to 

estimate dead discards as reported to 

ICCAT, and comment on the likely 

associated uncertainty. The current 

regulations are failing to implement key 

provisions of the ICCAT rebuilding 

plan, in violation of ATCA. The model 

used by NMFS in its Draft Consolidated 

HMS FMP assumes that the 

reproductive value of western Atlantic 

BFT in the Atlantic Ocean off the 

northeastern United States later in the 

year is equivalent to that of BFT from 

March-June in the Gulf of Mexico. This 

is a faulty and risky assumption. Does 

the analysis in the Draft Consolidated 

HMS FMP take into account the current 

low stock status of western Atlantic 

BFT? The Draft Consolidated HMS FMP 


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is flawed when it does not prefer closing 

BFT spawning grounds because it 

erroneously analyzes the closure 

primarily with regard to minimizing 

bycatch to the extent practicable. In fact, 

the primary legal duty falls under the 

need to rebuild the western Atlantic 

BFT population in as short a period of 

time as possible. Overfishing continues 

at high rates and the model used for the 

rebuilding program is unrealistically 

optimistic. 

Response: The estimates of discards 

used in the analyses include both live 

and dead discards, as reported by 

fishermen in logbooks. While NMFS 

ultimately used logbook data for the 

time/area analyses, NMFS also 

compared estimates of discards from the 

POP data. As described in the responses 

to comments 31 and 32 of this section, 

NMFS did not develop mortality 

estimates from the data. Rather, NMFS 

evaluated percent change in total 

discards as the measure of the 

effectiveness of potential time/area 

closures. NMFS disagrees that the 

current regulations are failing to 

implement provisions of the rebuilding 

plan. NMFS has adopted all of the 

ICCAT recommendations regarding 

BFT, a rebuilding plan is in place 

domestically for this species, and NMFS 

has implemented measures to rebuild 

this overfished stock. For the PLL 

fishery, fishermen are not allowed to 

target any BFT regardless of the size of 

the BFT. Thus, the model used by 

NMFS to calculate discards in the PLL 

fishery did not make any assumptions 

about the reproductive value of BFT 

caught in the PLL fishery. Rather, the 

intent of examining different closures 

was to maximize the potential reduction 

in bycatch of the PLL fishery for the 

greatest number of species, while 

minimizing losses in target catch in the 

PLL fishery. 

Comment 9: NMFS received a 

comment that the area in the ‘‘Nature’’

journal study extends beyond the U.S. 

EEZ and so should the time/area closure 

considered in the Draft Consolidated 

HMS FMP. There is no legal reason to 

limit the closure to the U.S. EEZ. 

Response: While NMFS has analyzed 

closures beyond the U.S. EEZ (e.g., the 

Northeast Distant closed area) in the 

past, except for two relatively small 

areas, the U.S. EEZ in the Gulf of 

Mexico abuts the Mexican EEZ. U.S. 

fishermen are not allowed to fish in the 

Mexican EEZ, and NMFS does not have 

the legal authority to regulate foreign 

fisheries that operate outside of the U.S. 

EEZ. As such, the analyses in the Final 

HMS FMP were limited to the U.S. EEZ 

in the Gulf of Mexico utilizing logbook 

and POP data from the U.S. PLL fishery. 

Data that includes fishing effort in other 

countries EEZs would be included in 

any analyses conducted by ICCAT, as 

needed. 

Comment 10: Demographics in the 

Gulf of Mexico have changed due to last 

summer’s hurricanes. No one knows 

what the impacts of that will be. NMFS 

should not rush into changes in the Gulf 

of Mexico that are not necessary. 

Response: NMFS is aware that there 

have been significant impacts in the 

Gulf of Mexico as a result of the 2005 

hurricanes, which may take time to be 

fully realized. After carefully reviewing 

the results of all the different time/area 

closures analyses, and in consideration 

of the many significant factors that have 

recently affected the domestic PLL fleet, 

NMFS does not prefer to implement any 

new closures, except the 

complementary measures in the 

Madison-Swanson and Steamboat 

Lumps closed areas at this time. As 

described above in the response to 

Comment 2 in this section, this decision 

is based on a number of reasons 

including the potential impacts of the 

hurricanes on the PLL fleet. 

iii. White Marlin 

Comment 11: NMFS received several 

comments in support of additional time/ 

area closures to protect white marlin. 

Comments included: NMFS should 

consider a closure for white marlin in 

the mid-Atlantic; NMFS has never 

implemented a time/area closure for 

PLL fishing specifically to reduce blue 

and white marlin, or sailfish bycatch 

even though exceedingly high levels of 

bycatch occur; and NMFS must reduce 

marlin bycatch by closing areas to 

longline fishing when and where the 

most bycatch continues to occur to 

avoid a white marlin ESA listing. 

Response: While NMFS has never 

implemented a closure to specifically 

reduce bycatch of blue and white 

marlin, current closures (the 

Northeastern U.S. closure, the DeSoto 

Canyon closure, the Charleston Bump, 

the East Florida Coast closures, and the 

Northeast Distant closed area) have 

resulted in large decreases in blue and 

white marlin discards from PLL gear, 

and billfish were considered in the 

analyses of these closures. Percent 

change in discards from the HMS 

logbook data before (1997 - 1999) versus 

after (2001 - 2003) the closures that were 

implemented showed an overall 47.5 

percent decrease in white marlin 

discards and an overall 50.3 percent 

decrease in blue marlin discards. In 

addition, NMFS banned live bait in the 

Gulf of Mexico for PLL vessels to help 

reduce billfish bycatch on August 1, 

2000 (65 FR 47214). In the Draft 

Consolidated HMS FMP, NMFS 

considered areas specifically for white 

marlin, per a settlement agreement 

relating to white marlin (Center for 

Biological Diversity v. NMFS, Civ. 

Action No. 04–0063 (D.D.C.)). Based on 

the HMS logbook and POP data from 

2001 - 2003, potential time/area 

closures, other than the areas outlined 

in the settlement agreement, were 

predicted to result in larger ecological 

benefits for all of the species 

considered, including white marlin. 

Ultimately, NMFS chose to further 

analyze time/area closure boundaries 

that included the areas of highest 

interactions for a number of species. 

However, based on the results of these 

analyses and for the reasons discussed 

under the response to Comment 2, 

NMFS chose not to implement any new 

closures at this time beside the 

complementary measures in the 

Madison-Swanson and Steamboat 

Lumps Marine Reserves. 

Comment 12: NMFS received a 

number of comments on alternative 

B2(c) including: Alternative B2(c) 

corresponds to the location of 

significant incidental catches of white 

marlin and leatherback sea turtles, so 

NMFS should consider that area for 

closures, effort restrictions, or stricter 

gear requirements rather than be 

paralyzed in the search for a single 

time/area closure that will address all 

bycatch reduction needs for more than 

a dozen species; NMFS should consider 

closed areas in the western Gulf of 

Mexico because that is where marlin are 

being killed; Alternative B2(c) should be 

closed from June through August to 

protect the greatest abundance of 

billfish in the Gulf of Mexico; the Draft 

Consolidated HMS FMP does not 

propose a closure big enough or long 

enough to meaningfully reduce billfish 

bycatch; U.S. and Japanese data show 

that the bycatch of billfish is higher in 

the Gulf of Mexico than in any other 

part of the commercial fishery, and the 

closures to protect blue and white 

marlin in the Gulf of Mexico could save 

more of these species than any other 

closure in the entire United States, yet 

NMFS did not consider that there would 

be enough positive impact to consider 

implementing a closure. 

Response: As described above in 

Comment 6 of this section, NMFS 

examined alternative B2(c) specifically 

in response to a petition for rulemaking 

regarding protection of spawning BFT. 

Under the full redistribution of fishing 

effort model for B2(c) (fishing effort 

distributed to all open areas), NMFS 

predicted an increase in white marlin 

discards (7.0 percent or 221 discards/ 

over three years; annual estimates can 


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be found by dividing by three), blue 

marlin discards (2.0 percent or 50 

discards/over three years), sailfish 

discards (4.4 percent or 45 discards/over 

three years), loggerhead sea turtle 

interactions (23.5 percent or 42 turtles/ 

over three years), BFT discards (9.8 

percent or 158 discards/over three 

years), swordfish discards (6.0 percent 

or 2,218 discards/over three years), and 

bigeye tuna discards (1.7 percent or 18 

discards/over three years). Under the 

second scenario of redistributed effort 

(redistribution in the Gulf of Mexico 

and Area 6), NMFS predicted increases 

in blue marlin discards (0.7 percent or 

20 discards/over three years), sailfish 

discards (21.7 percent or 283 discards/ 

over three years), spearfish discards (2.0 

percent or 10 discards/over three years), 

large coastal sharks (12.8 percent or 

2,454 discards/over three years), 

swordfish tuna discards (5.0 percent or 

2,109 discards/over three years), and 

bigeye tuna discards (0.6 percent or 7 

discards/over three years). Although 

white marlin discards were predicted to 

decrease under the second scenario 

evaluated (by 2.6 percent or 98 discards/ 

over three years), there were potential 

negative ecological impacts of B2(c) for 

other species considered under the 

different scenarios of redistributed 

effort. Therefore, NMFS does not prefer 

alternative B2(c) at this time. 

Based on a submission by the 

Japanese at ICCAT on BFT management 

(Suzuki and Takeuchi, 2005), the 

proposed closures and subsequent 

ecological benefits were based on 

closing the entire Gulf of Mexico and 

did not consider redistribution of 

fishing effort. As described above in 

Comment 9 of this section, NMFS has 

no jurisdiction to close the Mexican 

EEZ, and U.S. PLL vessels are 

prohibited from fishing in the Mexican 

EEZ. NMFS also believes it is critical to 

consider the redistribution of fishing 

effort before implementing management 

measures, such as time/area closures, 

because potential increases in discards 

and bycatch can result from time/area 

closures as effort is moved to remaining 

open areas. Additionally, as described 

above in the response to Comment 3 and 

elsewhere in this document, NMFS is 

considering future management 

measures to minimize bycatch of nontarget HMS in the Gulf of Mexico. 

Comment 13: Longlining should be 

banned off the East Coast from June to 

September when white marlin are 

present in this area. 

Response: NMFS currently has several 

closures along the eastern seaboard 

specifically for pelagic and bottom 

longline. These consist of the 

Northeastern United States closed area, 

which is closed to pelagic longlining 

during the month of June; the midAtlantic Shark Closure, which is closed 

from January through July to bottom 

longline gear; the Charleston Bump 

closed area that is closed to PLL gear 

from February through April; and the 

East Florida Coast closure that is closed 

year-round to PLL gear. The Florida East 

Coast (FEC), the Mid-Atlantic Bight 

(MAB), and the Northeastern Coastal 

(NEC) statistical reporting areas cover 

the extent of the U.S. Atlantic PLL 

logbook reporting areas along the East 

Coast. Comparing the number of 

discards for the months of July through 

December between the pre-closure 

period 1997 - 1999 and the period 2001 

- 2003, when closures were in effect, 

reported landings of white marlin 

decreased by 95.4 percent in the FEC, 

53.4 percent in the MAB, and 77.8 

percent in the NEC. Therefore, while 

NMFS has not implemented a closure 

for white marlin specifically along the 

East Coast, data show a substantial 

decrease in white marlin discards likely 

resulting from the current time/area 

closures along the eastern seaboard. 

iv. Current Closed Areas 

Comment 14: NMFS received several 

comments regarding the East Florida 

Coast closed area. These comments are: 

NMFS should prohibit all commercial 

fishing for swordfish in the East Florida 

Coast closed area; NMFS should 

eliminate all commercial shark fishing 

in the East Florida Coast closed area; 

NMFS should impose a 20–mile limit 

for the entire East Florida Coast that 

would prohibit commercial fishing in 

the area; NMFS should set a policy for 

the East Florida Coast closed area that 

allows for recreational swordfish hook 

and line fishing for a three to four 

month period or adopt management 

measures that allow for recreational 

swordfish hook and line fishing only on 

an every other year basis; NMFS needs 

to protect the Florida east coast because 

it is a nursery area for juvenile 

swordfish; NMFS should re-adjust the 

offshore border of the East Florida Coast 

Closed Area to allow PLL vessels a 

reasonable opportunity to harvest its 

ICCAT quotas; and, NMFS should 

reopen the offshore border because the 

inshore and Straits of Florida portions 

that will remain closed afford adequate 

ongoing protection for undersized 

swordfish and other bycatch. 

Response: NMFS closed the East 

Florida Coast closed area to PLL gear 

effective in 2001 (August 1, 2000, 65 FR 

47214) in order to reduce bycatch of 

HMS and other species by PLL gear. 

One reason NMFS closed that area was 

because it is a swordfish nursery area 

and many of the swordfish being caught 

by PLL fishermen were undersized and 

therefore discarded dead. However, the 

goal of the closures was to reduce 

bycatch in general in the PLL fishery, 

and analyses conducted for that 

rulemaking also indicated that closing 

the area to PLL gear would reduce 

bycatch and discards of other species as 

well. The closure was not intended to be 

for all commercial fishing or to be 

permanent. Nor was the closure meant 

to allow only recreational fishing in that 

area. Because the area is a swordfish 

nursery area, it is likely that any fishing 

gear in that area, particularly those 

fishing for swordfish, will catch 

undersized swordfish that must be 

discarded, as well as juvenile swordfish 

that meet the legal minimum size. The 

criteria in this final rule will allow 

NMFS to consider closing the East 

Florida Coast to other gears to reduce 

bycatch or for other reasons, or to 

modify the closed area to PLL gear to 

either expand or reduce it, as needed. 

NMFS considered modifications to the 

closed area to allow PLL fishermen into 

an area that they claimed had swordfish 

larger than the minimum size. The 

analyses for this rulemaking concluded 

that swordfish in the potential reopened area are significantly larger than 

those in the remaining closed area; 

however, the analyses also indicated 

potential increases in marlin bycatch. 

For this reason and others, NMFS is not 

modifying the East Florida Coast closed 

area at this time. NMFS may consider 

changes to that area or to the gears 

allowed to fish in that area in future 

rulemakings. 

v. Modifications to Current Closed 

Areas 

Comment 15: NMFS received 

comments supporting and opposing 

modifications of the existing HMS time/ 

area closures to allow additional fishing 

effort into these areas. Comments in 

support of modifying the existing 

closures include: the existing time/area 

closures to protect small swordfish are 

no longer needed and should be 

reduced in size and/or duration or 

eliminated all together; NMFS inaction 

to adjust the offshore closure borders 

prevents U.S. fishermen from having a 

reasonable opportunity to harvest its 

ICCAT quota share, contrary to ATCA 

and the Magnuson-Stevens Act; NMFS 

needs to re-examine the area closures 

and provide immediate modifications to 

at least some areas. Other areas may 

require a period of heightened 

monitoring to determine the effects of 

new circle hook gear and careful 

handling/release procedures; NMFS 

should continuously monitor whether 


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the existing closed areas are having the 

desired effect to determine whether 

modifications can occur; NMFS should 

reevaluate the PLL gear time/area 

closures for their necessity and 

effectiveness and redevelop these 

closures to include prohibiting all HMS 

hook and line fishing if the biological 

justification warrants retaining any such 

closures; NMFS should consider 

modifying the offshore borders of 

existing closures in several areas where 

the deeper depth contours provide 

relatively clean directed fishing; NMFS 

should have considered modifying the 

Desoto Canyon; opening the area 

offshore of the 250 fathom curve in the 

Desoto Canyon could benefit YFT 

fishermen; and if NMFS allows vessels 

into closed zones by using Vessel 

Monitoring Systems (VMS), then VMS 

should also be used to implement and 

enforce additional new closures that 

follow oceanic bottom contour lines. 

Comments opposed to modifying the 

existing HMS closures include: NMFS 

should not rely on old logbook data to 

modify existing closures; the existing 

closures should not be modified; NMFS 

should not consider areas that may 

serve as nursery areas for North Atlantic 

swordfish; NMFS should not consider 

opening the DeSoto Canyon areas to 

longlining because this would adversely 

affect the health of the fisheries 

ecologically and would prove 

detrimental to the economic interests of 

the commercial fleet; and, the figures in 

this section show longline sets after the 

2000 closure of the Desoto Canyon and 

the harvest of BFT dead discards, which 

is illegal, so how do individuals make 

these sets and record them in the 

logbook? 

Response: NMFS considered 

modifications to the current time/area 

closures, including modifications to the 

DeSoto Canyon, and is continuously 

monitoring the effectiveness of the 

current closures. As described above in 

the response to Comments 4 and 5 and 

elsewhere in this document, an analysis 

of pre-closure and post-closure data 

indicate that the existing closures have 

effectively reduced the bycatch of 

protected species and non-target HMS, 

and provided other positive ecological 

benefits. The analysis also indicated 

that none of the modifications would 

have increased the retained catch 

enough to alleviate concerns about 

portions of the swordfish quota 

remaining uncaught. Specifically for the 

DeSoto Canyon, NMFS considered 

modifying the existing DeSoto Canyon 

time/area closure boundary to allow 

PLL gear in areas seaward of the 2000 

meter contour from 26° N lat., 85°00′ W 

long., to 29° N lat., 88°00′ W long. 

(alternative B3(d)). However, the 

average swordfish size was significantly 

smaller in the area to be reopened 

(average size = 108 cm LJFL) compared 

to the area to remain closed (average 

size = 116 cm LJFL; P = 0.03). Both 

average swordfish sizes are smaller than 

the minimum size limit of 119 cm LJFL. 

Therefore, NMFS believes that 

modifying the Desoto Canyon closure 

could increase swordfish discards. In 

addition, new circle hook management 

measures were put into place in 2004, 

and NMFS is still assessing the effects 

of circle hooks on bycatch rates for 

HMS. Until NMFS can better evaluate 

the effect of circle hooks on bycatch 

reduction, especially with regards to 

protected species interaction rates, the 

Agency is not modifying the current 

time/area closures. Furthermore, as 

described in the response to Comment 

14 above, the current time/area closures 

were established to reduce bycatch of 

more than just swordfish. Nonetheless, 

if the upcoming ICCAT swordfish stock 

assessment indicates the species is 

rebuilt, NMFS may reconsider 

modifying the existing closures taking 

into consideration things such as the 

impact of circle hooks and protected 

species interaction rates. Finally, while 

VMS can provide NMFS with 

information that allows a vessel to 

transit a closed area, closed areas with 

boundaries that track oceanic contour 

lines would often be too irregularly 

shaped to be easily enforced despite the 

use of VMS. Geometric coordinates 

greatly aid in enforcement of time/area 

closures. 

The baseline that NMFS has used to 

calculate bycatch reduction associated 

with current time/area closures is the 

U.S. Atlantic HMS logbook data just 

prior to the implementation of the 

closures (1997 - 1999). NMFS feels this 

best reflects the status of the stocks at 

the time of the closures and more 

current data is not available because 

PLL gear has been prohibited in these 

areas since 2000 or 2001, depending on 

the closure. The figures referred to by 

the commenter (Figures 4.3 and 4.8 in 

the Draft Consolidated HMS FMP) 

incorrectly showed all of the 1997 - 

1999 reported sets rather than the 

intended 2001 - 2003 reported sets. The 

figures have been corrected. Very few, if 

any, sets have been reported in the 

Desoto Canyon since 2000. The figures 

in the Final Consolidated HMS FMP 

only show where BFT discards occurred 

for PLL vessels from 2001 through 2003. 

NMFS also implemented the use of a 

vessel monitoring system (VMS) for all 

PLL vessels on September 1, 2003 (68 

FR 45169). With this monitoring system, 

NMFS has been able to determine if PLL 

vessels are placing sets in closed areas. 

VMS has helped alert enforcement of 

illegal activities occurring in closed 

areas under real time conditions, which 

has led to prosecution for illegal fishing 

in closed areas. 

Comment 16: We support a 

modification of the area described in 

alternative B3(a) (modifications to the 

Charleston Bump closed area). While 

the analysis shows a negligible amount 

of bycatch, there is an opportunity for 

catching marketable species for boats 

that are struggling and need access to 

this area; we support a modification of 

the area described in alternative B3(b) 

(modifications to the Northeastern U.S. 

closed area) because this area should 

never have been closed in the first 

place; the entire June BFT closure area 

should be reevaluated in light of all the 

mandatory bycatch reduction measures 

and the inability to harvest the U.S. BFT 

quota in recent years. 

Response: NMFS analyzed both 

alternatives B3(a) and B3(b). The 

analyses indicate that alternative B3(a) 

would increase swordfish catch by 1.1 

percent and yellowfin tuna catch by 

0.16 percent. However, it could increase 

the bycatch of sailfish (3.0 percent), 

spearfish (2.4 percent), and white 

marlin (2.0 percent). Alternative B3(b) 

would cause a minimal increase in 

bycatch, with only a minimal increase 

in retained catch based on 1997 - 1999 

data (i.e., 3 swordfish, 1 BFT, and 1 

BAYS tuna (numbers of fish)). 

Therefore, NMFS is not implementing 

alternatives B3(a) and B3(b) because 

neither alternative would increase 

retained catches enough to alleviate 

concerns over uncaught portions of the 

swordfish and BFT quotas. As described 

in the response to Comment 2, NMFS is 

not implementing any new closures, 

except for the Madison-Swanson and 

Steamboat Lumps, or modifying any 

existing closures. NMFS may consider 

changes to the current time/area 

closures in a future rulemaking 

depending upon the results of the circle 

hook analyses, the 2006 ICCAT stock 

assessments (BFT, swordfish, and 

billfish), protected species interaction 

rates, and the other criteria described in 

this final rule. 

vi. Madison-Swanson/Steamboat Lumps 

Comment 17: NMFS received 

contrasting comments regarding 

preferred alternative B4 (implement 

complementary HMS management 

measure in Madison-Swanson and 

Steamboat Lumps Marine Reserves) 

including: I support preferred 

alternative B4 and the maintenance of 


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the existing closures; the Agency 

appears to be acting positively on the 

Gulf of Mexico Fishery Management 

Council’s request for complementary 

closures; I support this alternative even 

though this will have virtually no 

significant impact on HMS fisheries 

because the area is so small; I support 

alternative B4 because it will make 

enforcement easier; we support 

alternative B4 with the following edit, 

‘‘Maintain existing time/area closures 

and implement complementary 

November through April (6 months) —

Preferred Alternative’’; and we do not 

support complementary closures with 

Madison-Swanson and Steamboat 

Lumps - the PLL industry has had to 

withstand numerous stringent measures 

in recent years and cannot withstand 

any additional closures. 

Response: NMFS is implementing 

alternative B4, complementary HMS 

management measures for the MadisonSwanson and Steamboat Lumps Marine 

Reserves, at the recommendation of the 

Gulf of Mexico Fishery Management 

Council. These closures were designed 

primarily to protect spawning 

aggregations of gag grouper and other 

Gulf reef species. Similar management 

measures are already in effect for 

holders of southeast regional permits. 

The complementary HMS management 

measures would close any potential 

loopholes by extending the closure 

regulations to all other vessels that 

could potentially fish in the areas and/ 

or catch gag grouper and other reef fish 

as bycatch (e.g., HMS bottom longline 

vessels). As a result, this action is 

expected to improve the enforcement of 

the Madison-Swanson and Steamboat 

Lumps Marine Reserves. Only minor 

impacts on HMS fisheries, including the 

PLL fishery, are anticipated because the 

marine reserves are relatively small, and 

little HMS fishing effort has been 

reported in these areas. The suggested 

edit to the title of this alternative is 

appreciated, but is not necessary 

because the existing closures will 

remain in effect by default, absent 

additional action to remove or modify 

them. 

vii. Criteria/Threshold/Baseline 

Comment 18: NMFS received several 

comments on using the criteria on 

current closures including: NMFS 

should have created these criteria when 

establishing the closed area off NC - 

NMFS then could have modified the 

economic impacts to the NC directed 

shark fishermen by having flexibility to 

reduce the time and area of the current 

closed area; and all existing closed areas 

should be immediately re-evaluated in 

terms of the new criteria. 

Response: NMFS used many of the 

criteria when establishing the current 

time/area closures. NMFS is 

implementing the criteria to clarify the 

decision-making process and to inform 

constituents about what NMFS would 

consider before implementing new 

time/area closures or modifying current 

time/areas closures. In addition, in this 

rulemaking, NMFS evaluated the 

impacts of most of the current time/area 

closures in the No Action alternative, 

B1, and the impacts of modifying four 

current time/area closures. Thus, NMFS 

has already re-evaluated some of the 

current time/area closures using the 

criteria. Once the criteria are 

implemented, NMFS would continue 

using them in future rulemakings. The 

only time/area closure that was not reevaluated during this rulemaking was 

the mid-Atlantic shark closure off North 

Carolina. NMFS did not re-evaluate this 

closure because, as described in the 

response to a petition for rulemaking 

from the State of North Carolina 

(October 21, 2005; 70 FR 61286), the 

closure became effective in January 

2005, and NMFS did not have any 

additional information on which to 

reevaluate the conclusions of the 

rulemaking that established the closure 

(December 24, 2003; 68 FR 74746). 

However, when NMFS established the 

mid-Atlantic shark time/area closure, 

the Agency considered the social and 

economic impacts on directed shark 

fishermen, while also balancing 

reductions in the catch of juvenile 

sandbar sharks, the bycatch of 

prohibited dusky sharks, and the quota 

throughout the entire large coastal shark 

fishery. As described in this rulemaking 

and in previous rulemakings, the 

primary goals of time/area closures are 

to maximize the reduction of bycatch of 

non-target and protected species while 

minimizing the reduction in the catch of 

retained species. NMFS believes that the 

mid-Atlantic shark closure should 

accomplish these goals even though 

there may be negative economic impacts 

as a result of that closure. Once the 

results of the ongoing LCS and dusky 

shark stock assessment are finalized, 

NMFS may consider whether changes to 

any management measures are 

appropriate regarding LCS, including 

dusky sharks, and may reconsider the 

mid-Atlantic closed area in a future 

rulemaking using the criteria being 

implemented in this final rule. 

Comment 19: NMFS received several 

comments regarding research and closed 

areas including: NMFS should support 

additional research to determine where 

other closed areas should be placed; 

NMFS should collect data for use in 

establishing such criteria in open areas 

to the maximum extent possible; and 

there must be overwhelming reason to 

pay fishermen to use illegal gear in a 

closed area in the name of research 

(while still being able to sell their catch) 

when such studies could just as easily 

be performed in vast areas of the oceans 

where it is legal to fish in that manner. 

Response: NMFS supports research to 

determine how changes in fishing gear 

and/or fishing practices can reduce 

bycatch. Research in closed areas to test 

how changes in fishing gear and/or 

fishing practices may reduce bycatch is 

particularly important. Due to the 

spatial and temporal variability of HMS 

and the species that HMS interact with, 

the results of experiments in open areas 

may not always be applicable to closed 

areas. Oftentimes, these areas are ‘‘hot 

spots’’ and were closed because they are 

areas with high congregations of HMS or 

other species. These congregations 

usually occur along bathymetric contour 

lines or areas where currents interact. In 

order to scientifically test if a certain 

change in the gear would result in a 

significant reduction in bycatch, 

scientists may need to work in areas 

where there is a high degree of certainty 

that the gear will interact with the 

bycatch species. Testing for bycatch 

reduction in areas where there is little 

to no bycatch would likely require more 

monetary resources, fishermen, and 

time, compared with areas that are 

considered ‘‘hot spots.’’ Scientists often 

conduct preliminary tests in open areas 

to ensure that the changes in gear or 

fishing methods being considered could 

work, but they may need access to 

closed areas at some point to make 

certain that the expected results are 

actually realized. Otherwise, NMFS 

might reopen a previously closed area in 

light of technological advances in 

bycatch reduction but not see the 

expected reduction in bycatch rates, or 

potentially see an increase in bycatch 

rates. 

Comment 20: NMFS received 

comments regarding the specific criteria 

that NMFS should consider when 

examining potential area closures 

including: the criteria should include 

the status of the stock in each area 

under consideration; the criteria should 

include bycatch baselines, targets, 

reduction timetables, and consider 

impacts on all HMS, with an emphasis 

on overfished species; what percent 

reduction in discards is required to 

implement a time/area closure, and on 

what basis is this threshold determined? 

What is the threshold that the Agency 

is trying to achieve? There are no 

standards; was a target bycatch 

reduction level identified; the Agency 


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should quantitatively use an 

optimization model to combine areas to 

achieve the optimum benefit; these 

criteria should be developed in a 

workshop including managers, 

scientists, and stakeholders to ensure 

their success; the discussion of how 

specific criteria would be developed, 

reviewed, and authorized is vague; 

overall the criteria seem to restrict 

NMFS’ use of discretion in using closed 

areas as part of a comprehensive 

strategy to reduce bycatch and ensure 

sustainable ecosystems; and NMFS 

should preserve the availability of the 

greatest range of options to address its 

fisheries management, protected 

resources, and marine ecosystem 

conservation responsibilities. 

Response: NMFS already considers 

the status of the stocks when 

implementing time/area closures. 

Closed areas like the Northeastern 

United States closed area, the midAtlantic shark closed area, and the 

Northeast Distant closed area were all 

implemented to address specific 

overfished or protected species. The 

other closed areas, which were 

implemented to reduce bycatch in 

general, also considered the status of the 

stocks before implementation. 

Establishing pre-determined 

thresholds or target reduction goals for 

specific species, as requested in this 

comment, is not appropriate because it 

does not consider the impact on the 

remaining portion of the catch. 

Consideration of the overall catch is 

critical when implementing a 

multispecies or ecosystem-based 

approach to management. Furthermore, 

while the Magnuson-Stevens Act 

provides NMFS with the authority to 

manage all species, NMFS must balance 

the impacts of management measures on 

all managed species. National Standard 

1, which requires NMFS to prevent 

overfishing while achieving on a 

continuing basis, the optimum yield 

from each fishery for the United States 

fishing industry, clearly applies to all 

species and all fisheries. Similarly, 

National Standard 9, which requires 

NMFS to minimize bycatch and bycatch 

mortality to the extent practicable, 

applies to all species and fisheries. By 

choosing not to implement specific 

thresholds or a decision matrix, NMFS 

retains the flexibility to balance the 

needs of all the species encountered 

with the fishery as a whole. If NMFS 

must manage a fishery to achieve a 

specific goal (e.g., a jeopardy conclusion 

regarding the PLL fishery and 

leatherback sea turtles), this flexibility 

allows NMFS to close certain areas or 

take other actions to achieve that goal 

while also protecting, to the extent 

practicable, the other species and the 

rest of the fishery. Without this 

flexibility, NMFS might potentially have 

to implement more restrictive measures 

to protect one species causing potential 

cascade effects (e.g., closing one area 

may increase the bycatch of another 

species, which could result in closing 

another area, etc.). 

This flexible approach also provides 

NMFS with the ability to re-examine the 

need for existing closures and modify 

them appropriately based on the 

analyses rather than the attainment of a 

specific goal (e.g., NMFS would not 

have to wait for 30 percent reduction in 

bycatch to be met; it could open the 

closure at 25 percent, depending on the 

result of reducing bycatch of other 

species or other considerations, as 

appropriate). The present criteria do not 

preclude NMFS from establishing a 

decision matrix in the future if it could 

provide the flexibility necessary to 

consider all of the species involved. 

This may be more appropriate when 

NMFS has a longer temporal dataset on 

the simultaneous effect of circle hooks 

and the current time/closures. At this 

time, NMFS believes that the criteria 

contained in the preferred alternative B5 

would provide the guidance needed, 

consistent with the Magnuson-Stevens 

Act and this FMP, to help NMFS make 

the appropriate decisions regarding the 

use of time/area closures in HMS 

fisheries. NMFS developed the criteria 

to help make the overall process of 

implementing and/or modifying current 

time/area closures more transparent, not 

more vague. While NMFS did not hold 

a workshop on these criteria, they were 

considered by multiple stakeholders 

during the scoping and public comment 

period for this rule and subsequently 

refined, as appropriate. 

Comment 21: NMFS received many 

comments regarding the use of criteria 

to open or modify closed areas. These 

comments included: criteria are needed 

to allow for modifications of the closed 

areas; I cannot support the preferred 

alternative B5, area closure framework 

alternative, because it could allow 

NMFS to open existing closures; 

changes to existing closed areas must, at 

a minimum, be conservation neutral; we 

need a mechanism to open or modify 

closed areas; the present closures appear 

to be larger or different from what is 

necessary; to go through the entire 

regulatory process to change or 

eliminate the closures takes too long 

and is too costly for both the 

government and the fishery. 

Response: NMFS already has the 

authority to modify current closed areas 

once NMFS determines that a closed 

area has met its original management 

goal. The existing time/area closures 

were not meant to be permanent 

closures. Rather, each closure was 

implemented with a specific 

management goal(s) in mind. Once 

those goals are met, NMFS may decide 

to modify or remove the time/area 

closure. Through the implementation of 

the criteria, and using the appropriate 

analyses, NMFS would be able to 

modify the current time/area closures in 

a more timely and transparent manner. 

No changes were made to existing time/ 

area closures at this time because such 

modifications could potentially result in 

bycatch of non-target HMS and 

protected resources, such as sea turtles. 

However, once NMFS better 

understands the effects of circle hooks, 

which were implemented fleet-wide in 

mid–2004, on all species, NMFS may 

consider modifying the current time/ 

area closures. Such modifications would 

need to be either conservation neutral or 

positive. 

Comment 22: Since the East Florida 

Coast, Charleston Bump, and DeSoto 

Canyon closures went into effect, 

bycatch and fishing effort has been 

reduced. Those three closures achieved 

a greater than predicted reduction in 

bycatch. NMFS should use the year 

before the closures went into effect as a 

baseline to determine what the existing 

management measures have produced, 

rather than taking additional actions 

and expecting the bycatch to 

continually diminish. NMFS could 

modify closures and allow increases in 

bycatch up to the reductions expected 

as a result of the analyses that closed 

those areas. This would reduce the 

economic impacts on fishermen. 

Response: NMFS agrees that the 

current closures reduced the bycatch of 

most species more than predicted by the 

analyses in the rulemaking that 

originally closed the areas. NMFS used 

data just prior to the implementation of 

these closures (i.e., logbook data from 

1997 - 1999) because the Agency felt 

this time series best represented the 

status of the stocks at the time the 

closures were implemented. NMFS 

considered modifications to these areas 

in this rulemaking. However, the 

current analyses indicated that bycatch 

of some species, such as marlin and sea 

turtles, could increase as a result of 

those modifications. Given the status of 

marlin and the jeopardy finding on 

leatherback sea turtles, NMFS believes 

that increases in the bycatch of those 

species are not appropriate. 

Additionally, the analyses in this 

rulemaking are based on mostly J-hook 

data, which are no longer in use in the 

fishery. NMFS will continue to monitor 

the effectiveness of the closures and 


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may consider modifications in the 

future, particularly as the amount of 

circle hook data increases. 

viii. Fleet Mobility/Redistribution of 

Effort 

Comment 23: NMFS received several 

comments regarding the mobility of the 

fleet. These comments included: I do 

not believe that effort will move to the 

Atlantic Ocean from the Gulf of Mexico; 

commercial fishermen would rather stay 

home and fish for other species rather 

than relocate great distances; longline 

vessels are tied to communities; given 

rising fuel prices, an increase in long 

distance relocation seems unlikely; 

NMFS states that Vietnamese fishermen 

are reluctant to fish outside the Gulf of 

Mexico and uses this statement to 

conduct a separate analysis specific to 

the Gulf of Mexico, but NMFS applied 

the assumption to the analysis of only 

one alternative in the Gulf of Mexico 

when it should be applied to all GOM 

alternatives; how does the 2001 NMFS 

VMS study support conducting a fleetwide analysis when the majority of 

effort is in or adjacent to the homeport 

fishing area? 

Response: To determine fleet 

mobility, NMFS relied on its analyses 

described in a 2001 report that NMFS 

submitted to the U.S. District Court in 

response to a lawsuit filed by the fishing 

industry against NMFS for 

implementing the vessel monitoring 

system (VMS) requirement. That 

document indicated that fishermen were 

as likely to fish in areas away from their 

homeport as in areas immediately 

adjacent to their homeport, even 

without the added pressure of a closure 

in an area adjacent to their homeport. In 

addition, NMFS conducted a separate 

analysis in the Draft Consolidated HMS 

FMP for alternative B2(a) that limited 

the redistribution of effort in the Gulf of 

Mexico. This separate analysis was 

conducted because the area in 

alternative B2(a) was the smallest of the 

three closures considered in the Gulf of 

Mexico and, therefore, represented the 

most likely case in which fishermen 

would remain in the Gulf of Mexico. 

Because there would still be open areas 

in the Gulf of Mexico during this period 

(May through November), fishermen 

might be more likely to fish in those 

areas rather than relocate fishing effort 

to the Atlantic Ocean. NMFS also 

recognized that Vietnamese fishermen 

are reluctant to fish outside of the Gulf 

of Mexico, especially for a small time/ 

area closure. Such limited redistribution 

of effort was not appropriate for other 

closures in the Gulf of Mexico because 

of their larger geographic size and 

longer temporal duration. 

However, NMFS further analyzed 

fleet mobility in the current rulemaking 

by examining logbook data from 2001 - 

2004 (this included only the first six 

months of 2004 to include only J-hook 

data) to determine the amount of vessel 

movement along the Atlantic coast and 

into the Gulf of Mexico. The data 

indicated that vessels moved out of the 

Gulf of Mexico, and that vessels 

sometimes fished as far away as the 

central Atlantic. Similarly, in the 

Atlantic, some vessels fished in areas far 

from their homeports, although 

movement from the Atlantic Ocean into 

the Gulf of Mexico was minimal. 

Additionally, there were no physical 

differences in terms of length or 

horsepower between vessels that fished 

inside or outside the Gulf of Mexico. 

Thus, NMFS concluded that HMS 

vessels continue to be highly mobile, are 

capable of fishing in areas distant from 

their homeports, and that the closure 

analyses would need to take into 

account the potential for redistribution 

of fishing effort, particularly for a 

potentially large closure such as B2(c) in 

the Gulf of Mexico. Based on this 

additional analysis of fleet mobility, 

NMFS considered different scenarios of 

redistribution of effort for alternatives 

B2(a), B2(b), and B2(c). Each scenario 

made different assumptions regarding 

where effort would redistribute, based 

on the current fleet’s movement. 

However, NMFS recognizes that the 

increased cost of fuel and other supplies 

may limit the amount of movement by 

the pelagic longline fleet. 

Comment 24: NMFS received 

comments regarding the redistribution 

of fishing effort model used to analyze 

the time/area closure alternatives. 

Comments included: Does the model 

assume random distribution to other 

fishing grounds?; how does the 

redistribution of effort model result in 

more bycatch?; how does the 

redistribution of effort model work with 

circle hooks?; the model is based on 

discard rates, which implies some 

mortality. 

Response: NMFS considered a broad 

range of time/area closure alternatives 

that estimated potential bycatch with 

and without redistribution of fishing 

effort. Considering the impacts of 

closures with and without redistribution 

of effort provides NMFS with the 

potential range of changes in catch that 

could occur as a result of the closure(s). 

One end of the range assumes that all 

fishing effort within a given closed area 

would be eliminated (i.e., fishermen 

who fished in the closed area would 

stop fishing for the duration of the 

closure). Thus, the number and percent 

reduction in catch of both non-target 

and target species in these analyses 

represents the highest possible expected 

reduction. This would also represent the 

greatest negative social and economic 

impact that is anticipated for the 

industry. The other end of the spectrum 

assumes that all fishing effort in a 

closed area would be distributed to 

open areas (i.e., fishermen would 

continue fishing in surrounding open 

areas, move their businesses closer to 

open areas, or sell their permits to 

fishermen closer to open areas). 

Rather than random redistribution, 

the full redistribution model calculates 

resulting catch of target and non-target 

species by multiplying the effort that is 

being redistributed due to the closure by 

the average CPUE across all remaining 

open areas for each species. This 

amount is then subtracted from the 

estimated reduction inside the closed 

area (for a complete description of the 

methodology used for redistribution of 

effort, please see Appendix A of the 

Final Consolidated HMS FMP.) This 

end of the continuum would be 

expected to provide the least amount of 

bycatch reduction for a given closure, 

depending on the CPUE of each species 

in all remaining open areas. Oftentimes, 

this model provides mixed results 

regarding the ecological, economic, and 

social impacts because HMS and 

protected species are not uniformly 

distributed throughout the ocean. 

Therefore, a closure in one area might 

reduce the bycatch of one or two 

species, but may increase the bycatch of 

others. Bycatch of a particular species 

increases if that species is more 

abundant or more frequently caught 

(i.e., higher CPUE) in areas outside of 

the closed area. For example, the 

analyses indicate that a closure in the 

central Gulf of Mexico could reduce 

BFT and leatherback sea turtle discards 

because CPUE for those species is 

higher in the Gulf of Mexico than along 

the eastern seaboard. However, such a 

closure could increase sailfish, 

spearfish, and large coastal shark 

discards because the CPUE for those 

species is higher outside of the Gulf of 

Mexico. In reality, the actual result is 

expected to be between the results 

obtained from these two different 

considerations of redistributed effort. In 

addition, NMFS combined dead and 

live discards in these analyses, so 

mortality is accounted for in terms of 

discards. Given the number of species 

that NMFS had to consider, there was 

no single closure or combination of 

closures that resulted in a reduction of 

bycatch of all species considered. The 

data analyzed in the Draft Consolidated 

HMS FMP (2001 - 2003) and additional 


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analyses in the Final Consolidated HMS 

FMP (2001 - 2004, including the first six 

months of 2004 only) did not include 

circle hook data. The implementation of 

the circle hook requirement in June 

2004 resulted in a change to the 

baseline. NMFS needs to fully analyze 

the circle hook data to determine the 

extent of bycatch reduction and the 

effects of post-release mortality resulting 

from this new gear requirement. 

Comment 25: How is NMFS going to 

address the peer review comments that 

found fault with the effort redistribution 

model? 

Response: Not all of the peer 

reviewers found fault with the 

redistribution of effort analysis. For 

example, one peer reviewer made the 

following comment: 

The time area closure model is based on 

generally accepted principles in fisheries 

science. In general such models rely on a set 

of assumptions related to static patterns of 

relative abundance at some temporal and 

spatial resolution, limited consideration of 

fish movements, and incomplete 

understanding of the effects of closure areas 

on redistribution of fishing effort. 

Nonetheless, such models can provide useful 

insights for comparisons of alternative 

management strategies. This is the approach 

taken within this draft EIS. Twelve 

combinations of seasonal and spatial closures 

are evaluated in Section 4.1.2. Without such 

a model there would be no pragmatic way of 

comparing the proposed closed areas. In 

general it is probably safe to assume that the 

limitations of the model will be comparable 

across alternatives. Thus the rankings of each 

alternative should be relatively insensitive to 

the assumptions. 

However, in response to another peer 

reviewer’s comment that NMFS test 

assumptions and consider other 

plausible alternatives to the random 

effort redistribution model, NMFS 

evaluated different scenarios that made 

different assumptions regarding where 

effort would be redistributed in the 

Final Consolidated HMS FMP, 

including redistribution of effort in the 

Gulf of Mexico only for closures in the 

Gulf of Mexico, redistribution of effort 

in the Atlantic only for a closure in the 

Atlantic, and redistribution of effort in 

the Gulf of Mexico and the Atlantic for 

closures in the Gulf of Mexico. These 

scenarios were based on an analysis of 

the movement of fishing effort out of the 

Gulf and into the Atlantic. In order to 

perform this last analysis, NMFS 

examined logbooks from 2001 - 2004 

and tracked the movement of vessels out 

of the Gulf of Mexico into different areas 

of the Atlantic. By examining the 

movement of effort between the Gulf of 

Mexico and the Atlantic, NMFS was 

able to modify the existing full 

redistribution of effort model and apply 

different proportions of effort to the 

average CPUEs of species in the 

different areas. Using these additional 

analyses, NMFS could ask different 

questions about the assumptions of the 

existing model (e.g., should all fishing 

effort from a closed area be distributed 

to all open areas or redistributed only 

within remaining open areas of the Gulf 

of Mexico). 

Comment 26: The random 

redistribution of effort model weighs 

nearby and distant areas equally. This 

may artificially emphasize distant areas 

where bycatch rates are higher, and may 

result in unlikely assumptions about 

how the effort will shift. This model 

suggests that Gulf of Mexico vessels are 

mobile and might fish as far away as 

Florida but does not suggest that effort 

is distributed randomly or that 

significant effort would be displaced to 

the Northeast. To close or not close an 

area based on random redistribution of 

effort is not reasonable. We are 

concerned about the model given the 

fact that the data clearly show where 

concentrations of marlin are caught. 

Response: As described above in the 

response to Comment 24, the method 

used to calculate redistribution of effort 

and the resulting catch of target and 

non-target species is to multiply the 

effort that is being redistributed by the 

average catch rate (CPUE) for each 

species in all remaining open areas, and 

subtract it from the estimated reduction 

inside the closed area (for a complete 

description of the methodology used for 

redistribution of effort, please see 

Appendix A of the Final Consolidated 

HMS FMP.) In some cases, depending 

upon the average CPUE in open areas, 

this approach may emphasize distant 

areas where bycatch rates may be 

higher. However, in other cases, low 

bycatch rates in distant areas would not 

be a factor. For example, a small closure 

such as B2(a) in the central Gulf of 

Mexico might result in fishing effort 

being displaced into areas immediately 

adjacent to and surrounding the closed 

area. NMFS tried to take this into 

account by analyzing redistribution of 

effort only in the Gulf of Mexico for 

alternative B2(a). For larger closures in 

the Gulf of Mexico such as alternative 

B2(c), NMFS considered redistribution 

of effort in the Gulf of Mexico and 

Atlantic based on known movement of 

fishing vessels and effort into areas of 

the Atlantic. Finally, for a closure such 

as B2(b) located in the Atlantic, NMFS 

considered redistribution of effort in 

open areas of the Atlantic only. In all 

cases, NMFS considered the results of 

both no redistribution of effort and the 

full redistribution of effort model and 

assumed that the actual result of the 

closure would be somewhere between 

the results of the two scenarios. 

Comment 27: NMFS needs a 

probabilistic model for effort 

redistribution that considers things such 

as the history of effort. 

Response: NMFS is aware of other 

models that have investigated 

redistribution of effort as a result of 

time/area closures (i.e., random utility 

models (RUMs) used for the Hawaiian 

PLL fishery, and a closed area model 

used by the New England Fishery 

Management Council (NEFMC) to 

evaluate closures for the groundfish 

fishery). These types of models are 

econometric models, which predict 

where fishermen will reallocate effort 

based on maximizing revenues and/or 

profits. These models were not designed 

to be used for the current HMS PLL 

fishery, and in order for either 

framework to be applicable to a time/ 

area analysis for the Atlantic HMS PLL 

fishery, NMFS would have to develop a 

specific model for the PLL fleet based 

on the current economics, fishing 

grounds, and fishing effort of the 

Atlantic HMS PLL fleet. Development of 

such a model would require 

considerable additional investment, 

time, and effort. 

At present, NMFS has not developed 

a probabilistic model that considers the 

history of effort or other complicating 

factors (i.e., trip costs, revenues or 

profits). Prior to developing such a 

model, NMFS would need to consider 

the limitations of the Agency, both 

financially and logistically, to build 

such a model. For example, despite the 

fairly straightforward model used in this 

rulemaking and previous time/area 

rulemakings to calculate redistribution 

of fishing effort, many commenters 

found the procedure confusing or 

misunderstood the approach and 

results. This confusion could become 

even worse if a more complicated model 

were used. Some models require 

substantial capital investment for the 

Agency, years to develop, and years of 

testing before they can be used. While 

the model used continues to be the best 

available science for the PLL fishery at 

present, NMFS is considering different 

options to improve the models used to 

analyze the impacts of time/area 

closures. 

Comment 28: NMFS has applied the 

redistribution model beyond its 

usefulness because the model does not 

describe where the vessels are likely to 

go. NMFS places an overemphasis on 

the dangers of redistribution of effort 

instead of making balanced 

recommendations based on both the 

lower and upper estimates of the model. 


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Response: NMFS disagrees that the 

redistribution model has been applied 

beyond its usefulness. It is highly 

unlikely that NMFS could develop a 

perfect model that accurately predicts 

fishing behavior. The redistribution of 

effort model is useful in providing one 

end of a range of potential outcomes 

resulting from new closures. NMFS does 

not overemphasize the dangers of 

redistribution of effort, but rather 

considers it likely that fishing effort may 

be displaced into open areas and that 

there may be some increase in bycatch 

as a result. This is not highly 

speculative, but rather based on 

quantitative assessments of fishing 

effort, bycatch rates, and resulting 

ecological impacts. For instance, fishing 

effort in the open areas increased in the 

Gulf of Mexico after the implementation 

of the existing closures, which suggests 

that fishing effort will be displaced to 

other areas. Furthermore, NMFS does 

not believe that fishing effort that 

occurred historically within an area 

would be completely eliminated with a 

new closure. As stated above, the model 

used is the best available science for the 

PLL fishery; however, NMFS will 

continue to refine the model to increase 

its usefulness. 

Comment 29: NMFS received 

comments regarding effort shifts in the 

Gulf of Mexico including: effort shifts 

have not occurred in the Gulf of Mexico 

as predicted for other species; vessels 

may be offloading in different ports but 

still in the Gulf of Mexico; and the 

assumption that vessels would move out 

of the Gulf of Mexico and catch BFT, 

particularly spawning western BFT, is 

unlikely. 

Response: While there has been an 

overall decrease in fishing effort since 

implementation of the closures in 2000 

- 2001, NMFS has seen evidence of an 

increase in effort in the Gulf of Mexico 

during 2001 - 2004, possibly as a result 

of the East Florida Coast closure 

implemented in 2001, which forced 

fishermen who originally fished in the 

east coast of Florida into the Gulf of 

Mexico. The difference between 

closures implemented in 2000 and the 

closures being considered in this FMP is 

that many of the areas of high bycatch 

were targeted for closures in 2000 and 

remain closed today. NMFS is now 

analyzing an additional series of 

closures that may not produce the same 

tangible results that occurred after the 

first round of closures because bycatch 

has already been reduced substantially 

for many species. Analyses indicate that 

the overall number of reported discards 

of swordfish, BFT, bigeye tuna, pelagic 

sharks, blue and white marlin, sailfish, 

and spearfish have all declined by more 

than 30 percent since the time/area 

closures went into effect. Additionally, 

as the areas open to fishermen become 

more restricted, fishing effort will tend 

to become more and more concentrated 

in smaller and smaller areas where even 

low bycatch rates may result in 

increases in bycatch due to the high 

effort levels. Some of the closures 

considered in this rulemaking such as 

alternatives B2(c) and B2(d) would close 

very large portions of the Gulf of Mexico 

where approximately 90 percent of the 

historic fishing effort in the Gulf has 

occurred. Closing such a large area in 

the Gulf of Mexico would be 

unprecedented, and predicting the 

outcome would likewise be difficult. It 

should be noted that while the NED 

closure was just as large as some of the 

closures proposed in this rulemaking, 

the closures proposed in this 

rulemaking are closer to land and more 

accessible to vessels. However, NMFS 

disagrees with the comment that vessels 

would be unlikely to move out of the 

Gulf of Mexico in response to such an 

unprecedented large closure. The 

analyses indicate that fishermen 

currently homeported in the Gulf of 

Mexico move out of the Gulf of Mexico 

into the Atlantic even without the 

added incentive of a closure. Even in 

the highly unlikely event that fishermen 

did not move out of the Gulf of Mexico 

in response to a closure, the economic 

impact could force them to sell their 

permits to fishermen in the Atlantic, 

thereby increasing fishing effort in those 

areas. The redistribution of effort 

analysis in the FMP would take this into 

account. 

Comment 30: NMFS received many 

comments regarding where effort would 

be redistributed including: the model 

fails to consider redistribution of effort 

from one fishing gear to another (e.g., 

longline to gillnet); the model 

inappropriately predicts spatially 

heterogeneous increases in regional 

fishing effort and bycatch; NMFS should 

acknowledge the limitations of the 

model when selecting the final 

alternatives and base predictions about 

redistribution of effort on credible, 

transparent sources and peer-reviewed 

literature or on comparisons to the 

outcomes of previous time/area 

closures; and NMFS initially argued that 

there would not be a displacement of 

effort if closures were implemented, but 

now is arguing the opposite. 

Response: While the redistribution of 

effort model does not explicitly take 

into account the potential for fishermen 

to shift from one gear to another, NMFS 

has discussed a number of unintended 

consequences that could result from 

new closures, including fishermen 

selling their permits, moving to other 

areas, and possibly switching gears to 

target other species. However, given the 

limited access restrictions of permits for 

other fisheries, NMFS predicts that it 

would be difficult for fishermen to 

switch to a different gear and different 

fisheries unless they currently possess 

other permits. NMFS acknowledges the 

limitations of the redistribution of effort 

model, and has considered and 

analyzed other plausible alternatives to 

the current redistribution scenario. 

NMFS has considered results from both 

the redistribution of effort model and a 

no redistribution of effort model since 

the first closure for HMS fishermen was 

implemented in 1999. NMFS has 

consistently taken both scenarios into 

account when considering new or 

additional closures. 

ix. Data Concerns 

Comment 31: Does the recent article 

in the journal ‘‘Nature’’ regarding BFT 

spawning, which indicated that discards 

are being underestimated, affect NMFS 

assumptions about the benefits (and 

costs) of the proposed time/area 

closures? Does NMFS have any data 

indicating that bycatch rates are 

significantly lower than those recorded 

by the scientific observers? 

Response: NMFS is aware that 

discards may be underreported in the 

HMS logbook data compared to the POP 

data. However, NMFS examined 

whether any differences in 

underreporting between the logbook and 

observer data for different species 

emerged between different regions. If 

underreporting was not different 

between regions, then the relative effect 

of each closure on bycatch reduction for 

each species should be comparable 

across alternatives. 

Cramer (2000) compared dead 

discards from HMS logbook and 

observer data. In her paper, Cramer used 

observer data to estimate dead discards 

of undersized swordfish, sailfish, white 

and blue marlin, and pelagic sharks 

from the PLL fishery operating in the 

U.S. Atlantic, Caribbean, and Gulf of 

Mexico. She also provided the ratio of 

catch estimated from the observer data 

divided by the reported catch in the 

HMS logbooks. This ratio indicates the 

amount of underreporting for different 

species in a given area. NMFS analyzed 

these ratios to test whether 

underreporting varied for different 

species in different parts of the Atlantic, 

Caribbean, and Gulf of Mexico. NMFS 

found no statistical difference in the 

ratio of estimated catch versus reported 

catch for undersized swordfish, pelagic 

sharks, sailfish, or white or blue marlin 

in the Atlantic, Caribbean, or Gulf of 


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Mexico. Based on the available 

information, NMFS found that the 

underreporting in logbooks compared to 

observer reports was consistent between 

areas. Therefore, NMFS believes that, 

while HMS logbooks may underestimate 

the amount of bycatch, the use of 

logbook data rather than observer data 

should not invalidate or bias the results 

and that the relative effect of each 

closure for each species should be 

comparable across alternatives when 

using logbook data. 

Furthermore, while logbook data 

appear to underreport bycatch, NMFS 

has logbook data for each set fished and 

has observer data for only a limited 

number of sets fished. In order to use 

observer data for the analyses, NMFS 

would have had to extrapolate the catch 

for all species in all the different areas. 

This extrapolation process would have 

added another layer of uncertainty to 

the model and the results. NMFS 

believes that while the overall numbers 

of bycatch and target catch taken would 

have been larger using the observer data, 

the use of observer data would have 

resulted in more uncertainty regarding 

the relative effect of each closure in 

terms of predicted changes in bycatch, 

discards, and retained catch would be 

the same. Use of the raw logbook data, 

however, would not introduce the same 

degree of uncertainty. NMFS will 

continue to investigate potential 

differences in reporting between HMS 

logbook and observer data for all 

discarded species as well as potential 

biases in reporting between 

geographical areas for different species. 

Comment 32: NMFS should use the 

observed sea turtle CPUE by season for 

each region and multiply it by the 

amount of effort anticipated to return to 

that particular area in order to more 

accurately assess changes to sea turtle 

bycatch. 

Response: NMFS used HMS logbook 

data for all of the analyses to maintain 

consistency among the alternatives and 

species. If NMFS had used the POP data 

for all species, NMFS would have had 

to calculate extrapolated takes for all the 

species considered. This extrapolation 

would have introduced more 

assumptions and uncertainty than using 

HMS logbook data to analyze the 

potential impacts of time/area closures. 

As mentioned in the response to 

Comment 31, NMFS found that HMS 

logbooks may underestimate the amount 

of bycatch, however, the relative effect 

of each closure for each species should 

be comparable across alternatives. The 

analyses conducted for this rulemaking 

(and described in the response to 

Comment 31) give some indication that 

the use of HMS logbook data over POP 

data should not invalidate or bias the 

results of the time/area analyses because 

the level of underreporting did not 

significantly differ between geographic 

regions and, thus, between closure 

alternatives. NMFS will continue to 

investigate potential differences in 

reporting between HMS logbook and 

POP data for all discarded species. 

Comment 33: How did NMFS conduct 

the overlap analysis comparing effects 

of bycatch on BFT, marlin, and sea 

turtles? 

Response: NMFS analyzed the 

distribution of white marlin, BFT, 

leatherback and loggerhead sea turtles, 

as well as a number of other species 

from the 2001 - 2003 HMS logbook and 

POP data using GIS. Data for each of the 

species were mapped and compared 

spatially to one another in order to 

select the areas of highest concentration 

of bycatch. The areas of highest 

concentrations of bycatch for all species 

were then selected for further analysis. 

NMFS provided maps of bycatch for 

individual species in the Draft 

Consolidated HMS FMP, and has 

provided a map showing the overlap of 

BFT, white marlin, and sea turtles in the 

Final Consolidated HMS FMP. NMFS 

combined the bycatch data from the 

HMS logbook for BFT, white marlin, 

and sea turtles into one combined 

dataset, and then joined them to a 10 x 

10 minute grid (which is equivalent to 

approximately 100 nm2) to get the 

number of discards for all species 

combined per 100 nm2. A color scale is 

included to show the number of 

observations per 100 nm2. The maps 

show the areas of highest bycatch for the 

three species combined. Monthly 

interactions for the different species 

(i.e., temporal variability) were 

considered in the redistribution of effort 

analyses. 

Comment 34: NMFS should consider 

increasing observer coverage throughout 

the longline fleet to document 

unintended bycatch. 

Response: NMFS’s target for PLL 

observer coverage is 8 percent. This is 

based on the recommendation from the 

National Bycatch Report that found 

coverage of 8 percent would yield 

statistical analyses of protected 

resources that would result in 

coefficient of variance estimates that 

were below 30 percent. 

Comment 35: Available evidence 

suggests that leatherbacks, loggerheads, 

and BFT may share similar hot spots in 

the Gulf of Mexico, thus closures could 

be beneficial to all species — despite the 

opposite conclusion in the Draft 

Consolidated HMS FMP. 

Response: Pelagic logbook data also 

showed areas in the Gulf of Mexico 

where leatherbacks, loggerheads and 

BFT have been present. NMFS 

considered closures in the Gulf of 

Mexico for white marlin, blue marlin, 

sailfish, spearfish, leatherback sea 

turtles, loggerhead sea turtles, other sea 

turtles, pelagic and large coastal sharks, 

swordfish, BFT, and BAYS tunas. 

However, unlike the analyses for the 

existing closures, NMFS found that no 

single closure or combination of 

closures would reduce the bycatch of all 

species considered, and in certain cases 

resulted in increases of bycatch for some 

species with the consideration of 

redistribution of effort. While the 

Magnuson-Stevens Act provides NMFS 

the authority to manage all species, 

NMFS must balance the mandates of the 

National Standards when examining 

various closures. For example, National 

Standard 9 requires NMFS to minimize 

bycatch and bycatch mortality to the 

extent practicable and National 

Standard 1 requires NMFS to prevent 

overfishing while achieving on a 

continuing basis the optimum yield 

from each fishery for the U.S. fishing 

industry. Both of these National 

Standards applies to all species and 

fisheries. If NMFS were to consider only 

National Standard 9, NMFS could 

continue to reduce bycatch of certain 

species until no fishery exists. However, 

NMFS also needs to balance the needs 

of National Standard 1 and ensure that 

each fishery has the opportunity to 

catch optimum yield of fish while 

preventing overfishing. NMFS will 

continue to look at additional closures 

and other management measures that 

reduce bycatch and bycatch mortality 

and that balance the requirements of all 

the National Standards and other 

domestic law, as applicable. 

x. Pelagic Longline 

Comment 36: NMFS received several 

comments regarding alternative B7, the 

prohibition of PLL gear. These 

comments included: we oppose any rule 

that would allow the further use or 

experimentation of such gear, and 

support alternative B7, which would 

prohibit the use of PLL gear in HMS 

fisheries and areas (this alternative 

would save the fishery if buoy gear was 

also prohibited); NMFS needs to look at 

data prior to the introduction of PLL 

gear in relation to the decline of billfish; 

and this should be about the gear, not 

the fishermen, because PLL gear is 

problematic. 

Response: NMFS does not prefer 

alternative B7 at this time because, 

while prohibiting the use of PLL gear 

would eliminate bycatch associated 

with that gear, it would also eliminate 

a significant portion of the retained 


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catch of swordfish and tunas (e.g., in 

2004, 97 percent of the swordfish 

landings from the U.S. Atlantic were 

from longline gear). Elimination of this 

retained catch would result in 

substantial negative social and 

economic impacts. Under ATCA, the 

United States cannot implement 

measures that have the effect of raising 

or lowering quotas, although NMFS may 

change the allocation of that quota 

among different user groups. The 

swordfish fishery is confined, by 

regulation, to three gear types: harpoon, 

longline, and handlines. Under 

preferred alternative H5, the commercial 

swordfish fishery would also be 

authorized to use buoy gear. Since it is 

unlikely that the handgear sector would 

be able to catch the quota given the size 

distribution of the stock, prohibiting 

longline gear may reduce the ability of 

U.S. fishermen to harvest the full quota. 

It may also reduce traditional 

participation in the swordfish fishery by 

U.S. vessels relative to the foreign 

competitors because the United States 

would harvest a vastly reduced 

proportion of the overall quota. 

In addition, any ecological benefits 

may be lost if ICCAT reallocates U.S. 

quota to other countries that may not 

implement comparable bycatch 

reduction measures as the United States. 

The PLL fishery has implemented many 

management measures to reduce 

bycatch including circle hook 

requirements, live bait restrictions in 

the Gulf of Mexico, prohibition of the 

targeted catch of billfish and BFT, time/ 

area closures, and safe handling and 

release protocols for protected 

resources. These restrictions have been 

successful. Methods that have been 

employed and designed by U.S. PLL 

fishermen, such as circle hooks and safe 

handling and release protocols for 

protected resources, are being 

transferred around the world to reduce 

bycatch world-wide. Therefore, this 

alternative could ultimately support the 

fisheries of other countries that do not 

implement or research conservation and 

bycatch reduction measures to the same 

extent that the United States does. As a 

result, alternative B7 could have the 

unintended effect of increasing the 

bycatch of undersized or non-target 

species and protected resources in the 

Atlantic Ocean. 

Comment 37: NMFS needs to consider 

the adverse economic impact of existing 

time/area closures on the commercial 

longline fishery especially because the 

PLL fleet has been reduced to 

approximately 88 vessels due to existing 

restrictions; the current high cost of fuel 

is severely impacting the PLL fleet, and 

recent hurricanes may have further 

reduced the fleet. 

Response: NMFS evaluated the effect 

of current time/area closures on the PLL 

fleet in the No Action alternative, B1. 

While the closures have had a positive 

impact on bycatch, they have also had 

a negative impact on retained species 

landings. For example, from 1997 to 

2003, the number of retained swordfish 

declined by nearly 28 percent, the 

number of retained yellowfin tuna 

declined by 23.5 percent, and the total 

number of retained BAYS tunas 

declined by 25.1 percent. Overall effort 

in the Atlantic PLL fishery, based on the 

reported number of hooks set, declined 

by 15 percent from the pre-closure 

period to the post-closure period. One 

reason for this decline may be that 

fishermen left the fishery as a result of 

the time/area closures. In addition, 

other factors such as hurricanes and fuel 

prices have negatively impacted the PLL 

fishery. This is one reason why NMFS 

does not prefer any new time/area 

closures, except for Madison-Swanson 

and Steamboat Lumps, at this time. 

Rather, NMFS will continue to estimate 

current fishing effort and the potential 

recovery of the PLL fleet, while also 

considering protected species and other 

takes. 

Comment 38: Why is NMFS 

considering additional closures for the 

PLL fishery when analyses indicate that 

the original goals of the closures have 

been met or exceeded; NMFS does not 

react this way for the BFT fishery 

because it protects spawning or preadult swordfish, exceeding the ICCAT 

standards, yet promotes full utilization 

of the BFT angling quota; NMFS must 

realize that the PLL fishery is not always 

the highest contributor to mortality, and 

that other fisheries continue to hide 

behind their lack of data; NMFS should 

show recreational data and analyze 

closures for other gears; the issue is 

fishing mortality, regardless of where it 

comes from; NMFS must consider all 

forms of fishing mortality including post 

release mortality from catch and release 

fishing. 

Response: As part of its annual review 

process, NMFS evaluates the 

effectiveness of existing time/area 

closures. Analysis of the change in effort 

and bycatch after implementation of 

existing closures indicates that bycatch 

may have been reduced more than 

predicted with redistribution of effort, 

and in some cases, without 

redistribution of effort. There are several 

possible explanations for the higher 

than predicted decline in bycatch and 

effort resulting from time/area closures 

that may have ecological impacts as 

well as economic repercussions on 

fishing behavior and the PLL fishing 

industry: (1) stocks may be declining; 

(2) time/area closures may have acted 

synergistically with declining stocks to 

produce greater declines in catch than 

predicted; (3) fishermen may have left 

the fishery; and (4) fishing effort may 

have been displaced into areas with 

lower CPUEs. With regard to the last 

point, the redistribution of effort model 

is incapable of making predictions 

based on a declining CPUE. Instead, the 

model assumes a current CPUE that 

remains constant in the remaining open 

areas when estimating reductions. 

NMFS also considered modifications to 

the existing closures, in alternatives 

B3(a) and B3(b), to provide additional 

opportunities to harvest legal-sized 

swordfish but not increase bycatch. 

NMFS, however, does not prefer any 

modifications to the current closures for 

the reasons discussed in the response to 

Comment 15. NMFS agrees that all 

sources of fishing mortality should be 

considered in evaluating new and 

existing management measures. For this 

reason, circle hooks would be required 

with natural baits in all billfish 

tournaments (preferred alternative, E3). 

Estimated mortality contributions of the 

domestic PLL and recreational sectors 

toward Atlantic white marlin can be 

seen in Appendix C of the Consolidated 

HMS FMP. NMFS will consider 

additional information on post release 

mortality as it becomes available. 

Comment 39: NMFS must consider 

safety. Overly restrictive closed areas 

force small vessels to stretch beyond 

their offshore capabilities. 

Response: NMFS agrees that safety 

concerns should be considered when 

developing any new management 

measures, consistent with National 

Standard 10. After carefully reviewing 

the results of all the different time/areas 

closures analyses, and in consideration 

of the many significant factors that have 

recently affected the domestic PLL fleet, 

NMFS, at this time, does not prefer any 

new closures, except the 

complementary measures in the 

Madison-Swanson and Steamboat 

Lumps Marine Reserves. This decision 

is based primarily upon the analyses 

indicating that no single closure or 

combination of closures would reduce 

the bycatch of all species considered 

(see the response to Comment 39 of this 

section). Furthermore, the economic 

impacts of each of the alternatives may 

be substantial, ranging in losses of up to 

several million dollars annually, 

depending upon the alternative, and 

displacement of a significant number of 

fishing vessels. 


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xi. Bottom Longline 

Comment 40: We support the 

prohibition of bottom longline gear in 

the southwest of Key West to protect 

smalltooth sawfish (alternative B6). This 

alternative can provide a head-start in 

reducing sawfish bycatch during the 

lengthy process of review and 

implementation of the Smalltooth 

Sawfish Recovery Plan (SSRP). NMFS 

should coordinate closely with the 

Panama City Laboratory and Mote 

Marine Laboratory to ensure full 

funding of their proposed research into 

sawfish critical habitat and act promptly 

on their recommendations regarding 

additional time/area closures for the 

species. 

Response: The alternative to close an 

area off of Key West relied upon a 

limited amount of Commercial Shark 

Fishery Observer Program (CSFOP) data, 

thus making it difficult to determine 

whether the area being considered 

would result in overall reduction in 

interactions, or whether sawfish exhibit 

a higher degree of mobility, and are as 

likely to be caught in other areas. Recent 

information indicates that additional 

sawfish interactions have occurred 

outside the proposed area, thus 

necessitating further review of the most 

appropriate location for a potential 

closure. In addition, the Smalltooth 

Sawfish Recovery team is currently in 

the process of identifying sawfish 

critical habitat, which may be helpful in 

determining an appropriate closure area 

in the future. NMFS supports this and 

other efforts to further delineate critical 

habitat for this endangered species. 

Comment 41: NMFS received several 

comments regarding the bottom longline 

closed area off North Carolina 

including: NMFS should 

comprehensively examine and assess 

the effectiveness of closures and have 

the confidence that alterations would 

not reduce protection for dusky and 

sandbar sharks; I recommend removing 

the NC BLL closure and re-analyzing the 

impacts in the same manner as was 

done for this document. Displacement 

was not considered for that closure; and 

NMFS should change the NC closed 

area to only be closed out to 15 fathoms 

maximum depth, and change the time to 

begin on April 1 and continue until July 

31 of each year. These changes protect 

juvenile sandbar sharks, keep 

protections in place for the peak 

‘‘pupping season,’’ and balance the 

needs of the directed shark fishermen 

whose economic livelihood has been 

hurt by the Amendment 1 measures. 

Response: The bottom longline closed 

area off North Carolina was 

implemented in Amendment 1 to the 

FMP in December 2003, and became 

effective on January 1, 2005. The time/ 

area closure has now been in place for 

two complete management periods from 

January 1 to July 31, 2005, and January 

1 to July 31, 2006. The final 2005 

logbook data recently became available. 

NMFS is beginning to evaluate the 

impacts of the first period of this 

closure. NMFS is considering additional 

new information, such as the results of 

LCS stock assessment and the dusky 

shark stock assessments, to determine 

whether changes to the time/area 

closure, and all shark management 

measures in general, are appropriate. As 

a result of the new stock assessments, 

long-term changes to the time/area 

closure will be considered in an 

upcoming amendment to the FMP. 

However, given the large overharvest in 

the South Atlantic region in the first 

trimester of 2006, NMFS is considering 

short-term changes to the mid-Atlantic 

shark closure in 2007. NMFS also 

continues to monitor changes to shark 

regulations by coastal states and to work 

with the Atlantic States Marine 

Fisheries Commission (ASMFC) to 

develop an interstate shark plan, which 

may warrant additional review of 

existing Federal regulations and 

consideration of further changes to the 

time/area closure. 

NMFS considered redistribution of 

fishing effort for the time/area closure 

off North Carolina in Amendment 1. 

The redistribution of fishing effort 

analysis indicated that, despite an 

increase in fishing effort outside the 

time/area closure, the closure would 

reduce the overall catch of juvenile 

sandbar and dusky sharks. The analysis 

showed that the number of juvenile 

sandbar and prohibited dusky sharks 

outside the time/area closure was low 

compared to the number being caught 

inside the time/area closure. 

xii. Hook Types 

Comment 42: NMFS received several 

comments regarding hook types and 

time/area closures, including: the time/ 

area closure analyses are based on Jhook data, which the Agency has 

admitted is obsolete; the time/area 

closure analyses do not take into 

account new CPUE or PRM rates based 

on circle hooks; the impact of the area 

closures will be larger than predicted 

because the PLL industry is already 

using circle hooks; all of NMFS analyses 

are based on J-hook data and a much 

larger fleet. Bycatch and bycatch 

mortality will be further reduced due to 

the exclusive use of circle hooks in the 

PLL fishery; NMFS should consider 

banning all J-hooks and live bait fishing 

in all areas that are currently closed to 

PLL fishing. 

Response: NMFS used the best 

scientific information available to 

analyze the various time/area closure 

alternatives. Circle hooks were not 

required in the PLL fishery until July 

2004, and all of the data used in the 

time/area analyses were based upon Jhook data. The evaluation of the effects 

of circle hooks is discussed in the 

response to Comment 2 above. An 

important component of the rationale 

supporting the Agency’s decision not to 

prefer new time/area closures 

(notwithstanding Madison-Swanson and 

Steamboat Lumps) is based upon 

absence of information regarding the 

effects of circle hooks on bycatch rates 

in the PLL fishery. 

Similarly, there is an absence of 

information to analyze the effects of a 

ban on all J-hooks and live bait fishing 

in areas that are currently closed to PLL 

fishing. Some available studies 

document the effects of circle hooks on 

certain species (i.e., white marlin), and 

NMFS prefers specific, targeted hook 

requirements to reduce bycatch 

mortality in these fisheries. However, 

the effect of circle hooks on other HMS 

species (i.e., swordfish and sharks) and 

fisheries is largely unknown. As 

additional information becomes 

available, NMFS will assess the need to 

require circle hooks, or to prohibit live 

bait, in other HMS fisheries in areas that 

are closed to PLL fishing. 

xiii. General Time/Area Comments 

Comment 43: NMFS chose to combine 

some of the closures in the analyses. 

How were those areas chosen? 

Response: NMFS analyzed the 

combination of areas that had the 

highest bycatch of certain species in the 

Gulf of Mexico and the Atlantic to 

maximize potential bycatch reduction, 

and to take into account high bycatch 

for the same species in different areas as 

described in response to Comment 33. 

For example, there is high bycatch for 

BFT in both the Gulf of Mexico and in 

areas of the Northeast. By combining 

these two areas, NMFS took into 

account the fact that, if effort were 

redistributed, it would not be 

redistributed into the areas of highest 

bycatch in a different geographic region. 

Comment 44: What is the new process 

for establishing and/or modifying 

closures? 

Response: NMFS is not implementing 

a new process for establishing or 

modifying HMS time/area closures. 

Rather, the Agency is identifying 

specific criteria to consider for 

regulatory framework adjustments that 

could implement new time/area 


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closures or modify existing time/area 

closures in the future. NMFS has always 

considered these criteria, or 

combinations of them, in establishing or 

modifying time/area closures. The 

preferred alternative, however, will 

provide for greater transparency and 

predictability in the decision making 

process by clarifying what the Agency is 

looking for, or considering, during its 

analyses. The same criteria will be used 

both to establish new closures and to 

modify existing closures. The preferred 

alternative to establish these criteria 

will not affect the ability of the public 

to submit a petition to NMFS for 

rulemaking if they believe that an 

existing time/area closure should be 

modified or a new time/area closure 

should be established. 

Comment 45: The proposed time/area 

closure alternatives do not achieve the 

conservation objectives of the FMP. 

Response: There are many objectives 

in the Consolidated HMS FMP. All of 

these objectives must be balanced and 

considered in their entirety, within the 

context of the Magnuson-Stevens Act 

and other domestic laws, when 

implementing management measures. 

Some of the objectives in the FMP are 

especially relevant to this particular 

comment. The first objective is to 

prevent or end overfishing of Atlantic 

tunas, swordfish, billfish and sharks and 

adopt the precautionary approach to 

fishery management. The second 

objective is to rebuild overfished 

Atlantic HMS stocks and monitor and 

control all components of fishing 

mortality, both directed and incidental, 

so as to ensure the long-term 

sustainability of the stocks and promote 

Atlantic-wide stock recovery to the level 

where MSY can be supported on a 

continuing basis. The third objective is 

to minimize, to the extent practicable, 

bycatch of living marine resources and 

the mortality of such bycatch that 

cannot be avoided in the fisheries for 

Atlantic HMS or other species, as well 

as release mortality in the directed 

billfish fishery. Finally, another 

objective that is relevant to this 

comment indicates that NMFS should 

minimize, to the extent practicable, 

adverse social and economic impacts on 

fishing communities and recreational 

and commercial activities during the 

transition from overfished fisheries to 

healthy ones, consistent with ensuring 

the achievement of the other objectives 

of this plan and with all applicable 

laws. These objectives clearly indicate 

that the biological impacts on all HMS 

species must be considered, as well as 

the bycatch of all other living marine 

resources. In addition, NMFS must 

minimize, to the extent practicable, 

adverse social and economic impacts on 

fishing communities and fisheries, 

while remaining consistent with the 

other FMP objectives. In selecting the 

preferred time/area closure alternatives, 

NMFS has accomplished these 

objectives. 

In this rulemaking, NMFS does not 

prefer any new closures, except for 

complementary measures in the 

Madison-Swanson and Steamboat 

Lumps Marine Reserves. This decision 

is based primarily upon the analyses 

described in the Final Consolidated 

HMS FMP indicating that no single 

closure or combination of closures 

would reduce the bycatch of all species 

considered, when considering 

redistribution of effort (see response to 

Comment 39 of this section). 

Furthermore, the economic impacts 

associated with each of the new closure 

alternatives could be substantial, 

ranging in losses of up to several million 

dollars annually, depending upon the 

alternative, which would result in the 

displacement of a significant number of 

fishing vessels. Even when the time/area 

closure alternatives were combined in 

an attempt to maximize bycatch 

reduction, the ecological benefits were 

minimal at best, with increases in 

discards of some species. NMFS 

considered a number of closures based 

upon analyses with and without the 

redistribution of fishing effort. The 

Agency believes it is important to 

consider the redistribution of fishing 

effort because HMS and protected 

species are not uniformly distributed 

throughout the ocean. Fishing vessels, 

which are mobile, can move from one 

location to another, if necessary, when 

a closure is implemented. Therefore, a 

closure in one area might reduce the 

bycatch of one or two species, but may 

increase the bycatch of others. NMFS 

additionally considered alternative 

approaches to effort redistribution for 

closures to protect BFT in spawning 

areas in the Gulf of Mexico. Even when 

using this revised approach, which is 

described more fully in the Final 

Consolidated HMS FMP, closures in the 

Gulf of Mexico increase the bycatch of 

some of the species being considered. 

Based upon these results, and in 

consideration of other recent significant 

developments in the PLL fishery 

(mandatory circle hooks, rising fuel 

costs, devastating hurricanes, etc.), new 

time/area closures are not appropriate at 

this time. This decision is fully 

consistent with the objectives of the 

Consolidated HMS FMP and all other 

applicable law. 

Comment 46: If species identification 

is questionable how can the impacts of 

closures be analyzed? 

Response: NMFS agrees that species 

identification can be problematic, 

especially the identification of large 

coastal sharks at the dealer level. 

However, NMFS can evaluate the 

potential impacts of the various time/ 

area closures because large coastal 

sharks were combined into a single 

group for the analyses. Identification of 

other species that achieve legal 

minimum sizes may be less problematic. 

Nevertheless, NMFS has used the best 

available scientific data to evaluate 

potential impacts of time/area closures. 

Comment 47: NMFS must consider 

the turtle take and gear removal data 

from the first two years of the pelagic 

longline fishery’s three-year ITS. 

Pursuant to the BiOp, annual take 

estimates based on POP and effort data 

are required to be completed by March 

15th of each year. Additionally, NMFS 

should take this opportunity to provide 

a framework to take corrective actions as 

recommended by the BiOp. 

Response: NMFS agrees that changes 

may have occurred in the PLL fishery 

since implementation of the circle hook 

requirement and safe handling and 

release guidelines in July 2004. NMFS 

currently only has finalized logbook 

data on the catch associated with circle 

hooks from July through December of 

2004. 2005 was the first full year under 

these requirements. The final 2005 HMS 

logbook data became available in 

August 2006. NMFS will begin to 

analyze that data soon. Because circle 

hooks likely have a significantly 

different catch rate than J-hooks, further 

investigation is required to determine 

the potential impacts of time/area 

closures. The Agency will continue to 

monitor and analyze the effect of circle 

hooks on catch rates and bycatch 

reduction, as well as assess the 

cumulative effect of the current time/ 

area closures and circle hooks. NMFS 

has also completed its annual take 

estimates of sea turtles for both 2004 

and 2005. These estimates indicate that 

both loggerhead and leatherback 

interactions have decreased 

substantially. During 2005, the first full 

year under the circle hook requirement, 

a total of 282 loggerhead and 368 

leatherback sea turtles were estimated to 

have been taken. This represents 

decreases of 64.8 and 65.8 percent 

compared to the annual mean for 2000 

- 2003 for loggerheads and leatherbacks, 

respectively. With regard to the 

framework mechanism recommended 

by the BiOp, NMFS has requested 

comment on this mechanism and other 

ways to reduce unanticipated increases 

in sea turtle takes by the PLL fishery 

(August 12, 2004; 69 FR 49858). NMFS 

is considering the comments received 


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and notes that the preferred alternative 

to establish criteria is a step towards 

allowing for more proactive measures. 

Rebuilding and Preventing Overfishing 

A. Northern Albacore Tuna 

Comment 1: NMFS received 

comments opposed to alternative C2, 

unilateral reduction in albacore fishing 

mortality, which indicated such 

restrictions would only create 

unnecessary waste and discards. 

Commenters remarked that the United 

States only weakens its negotiating 

position by taking unilateral steps prior 

to ICCAT action. Prohibiting retention 

of albacore by all U.S. vessels would 

have negligible conservation effects. 

Some commenters stated that the United 

States should take action ahead of 

ICCAT and not negotiate our position. 

Response: NMFS recognizes the costs 

associated with imposing restrictions on 

albacore tuna landings for U.S. fisheries, 

and at the present time believes that the 

costs are greater than potential 

ecological benefits for the northern 

albacore stock as a whole. Restrictions 

that affect U.S. fishermen solely are not 

expected to be of significant ecological 

value to the Atlantic albacore stocks as 

a whole, as U.S. albacore landings 

account for less than 2 percent of the 

international landings. Furthermore, 

albacore stock assessment data has been 

updated but not re-evaluated since 

2000. The next assessment is currently 

scheduled for 2007. It would not be 

consistent with ATCA to impose fishing 

restrictions on this stock in the absence 

of current data supporting such an 

action. The Agency therefore selects 

alternative C3, which allows the United 

States to build a foundation with ICCAT 

to develop a comprehensive 

management plan for albacore. 

Comment 2: NMFS received 

comments in opposition to selected 

alternative C3, which would establish a 

foundation at ICCAT for the 

development of an international 

northern albacore tuna rebuilding 

program. These comments include: 

‘‘The Gulf of Mexico Fishery 

Management Council is concerned that 

regulations to rebuild the northern 

albacore could impact other Gulf 

fisheries and recommends that no action 

be taken in the Gulf as part of the United 

States foundation for the ICCAT 

rebuilding program, since there is not a 

substantial albacore catch in the Gulf’’; 

I am leery about any regulations relating 

to albacore since albacore is an 

important fishery in Aug-Sept off Long 

Island; NMFS should set a bag limit of 

three albacore per person and a 

minimum size of 27 inches curved fork 

length now, and perhaps enact a 

seasonal catch limit as well. 

Response: As noted by the SCRS in 

2003, trends for CPUE of albacore are 

stable and possibly increasing for the 

PLL fleet; however, in the absence of 

more recent stock assessment data, the 

Agency believes that no action, or 

moving forward with a unilateral 

reduction in U.S. fishing mortality are 

not consistent with ATCA and are 

therefore not selected. In alternative C2, 

NMFS considered the ecological, social 

and economic impacts of unilateral 

action. Restrictions that affect U.S. 

fishermen solely, including the 

implementation of bag and size limits, 

or catch limits, are not expected to 

significantly benefit the Atlantic 

albacore stocks as a whole, as U.S. 

albacore landings account for less than 

2 percent of the international landings. 

NMFS prefers to work with ICCAT to 

develop an international rebuilding plan 

for albacore. No immediate restrictions 

will be imposed on fisheries in the Gulf 

or elsewhere as NMFS develops the 

appropriate foundation for such a plan 

as described in alternative C3. Upon 

adoption of an ICCAT rebuilding plan, 

domestic management would be 

developed in separate rulemaking and 

Gulf regulations options may be 

considered at that time, as appropriate. 

Comment 3: NMFS received support 

for establishing a foundation at ICCAT 

for developing an international 

rebuilding program for northern 

albacore tuna. These comments include: 

The management approach for Northern 

Albacore is favorable and NMFS should 

apply this approach to many other 

domestic fisheries; and we support 

alternative C3, which will actively 

encourage ICCAT to develop and 

implement an international rebuilding 

plan for albacore tuna. While we 

support an albacore-rebuilding plan, we 

do not believe that the United States 

should implement reductions on its 

albacore fishermen. For meaningful and 

effective rebuilding of albacore to take 

place, U.S. managers must be willing to 

put significant pressure on countries 

with high fishing mortalities; and, EU 

countries have felt compelled to ban 

gillnets in this fishery. 

Response: To effectively ensure that 

international efforts are taken to regulate 

albacore fishing mortality and provide 

for a sustainable fishery, the Agency 

plans to work with ICCAT to develop a 

rebuilding program for this species. As 

current international catch rates exceed 

the levels needed to produce MSY, 

NMFS believes that international 

cooperation is essential to rebuild the 

stock and thereby provide long-term 

positive ecological impacts. 

Comment 4: NMFS received a number 

of comments regarding the data that is 

used to determine the U.S. catch and 

status of Atlantic albacore, including: 

We are concerned about the use of 

survey data for the for-hire sectors of 

this fishery. A study by Loftus and 

Stone showed that the LPS data 

significantly underestimated 

recreational catches of northern albacore 

tuna, which supports the need for 

increased recreational data collection; 

there is a directed fishery for longfin 

tuna that catches albacore; this fishery 

is not important to the GOM but it could 

affect other GOM fisheries. It is 

important to get the data straightened 

out now rather than after the fact; and, 

we need better recreational data. The 

draft FMP did not pay adequate 

attention to data issues, including 

looking at a census approach rather than 

sampling. We need to work with ACCSP 

to create census data with good quality 

control. 

Response: Adequate data collection is 

an ongoing concern for the successful 

management of Highly Migratory 

Species. NMFS funds the Large Pelagic 

Survey (LPS) which is a sampling based 

catch data collection program for HMS 

species. In two states, MD and NC, 

catch-card and tail-wrap tagging 

programs are part of the LPS, which is 

using the census approach to catch data 

collection. NMFS is working with 

managers to collect data for all HMS 

species, including Atlantic albacore, 

through the ACCSP program. In 

addition, the Gulf of Mexico Fishery 

Management Council has asked the Gulf 

States Marine Fisheries Commission to 

look into statistical and census-based 

data collection programs for HMS in the 

Gulf of Mexico. 

Comment 5: NMFS received 

comments asking to explain what 

‘‘establish the foundation with ICCAT ‘‘

means in terms of a specific plan. One 

commenter suggested that the plan 

needs to be fully developed and 

explained in the proposed FMP. 

Response: If the stock is determined 

to be overfished during the 2007 

assessment, the United States will work 

with ICCAT to develop a comprehensive 

international rebuilding plan that would 

be adopted by ICCAT, and that would 

comply with the Magnuson-Stevens Act. 

Implementation of the selected 

alternative will include a thorough 

analysis of the ICCAT rebuilding 

program to ensure that it includes a 

specified recovery period, biomass 

targets, fishing mortality rate limits, and 

explicit interim milestones expressed in 

terms of measurable improvement of the 

stock. Each of these components is 

necessary to support the objectives of 


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this FMP and the intent of the 

Magnuson-Stevens Act. The goal of this 

alternative is for ICCAT to adopt an 

Atlantic-wide TAC for northern albacore 

tuna, along with other conservation and 

management measures, to rebuild the 

stock. Upon adoption by ICCAT, 

domestic management and conservation 

measures for the United States would be 

developed in a separate rulemaking. 

Comment 6: One commenter asked 

how the 607 mt quota is to be divided 

between the commercial and 

recreational fisheries. 

Response: Currently, the United 

States does not have domestic quota for 

recreational albacore catches, nor are 

there restrictions on the number of 

albacore that may be landed by 

commercial vessels issued an Atlantic 

tunas permit. Allocation of the quota 

between commercial and recreational 

fisheries has not been of concern during 

recent years as the U.S. harvest has been 

below the quota allocated by ICCAT. 

During the last eight years (1997 to 

2004), an average of 161.4 mt and 311.4 

mt of northern albacore were caught on 

longlines and rod and reel, respectively. 

Comment 7: NMFS received a 

comment that a lot of albacore tuna are 

seen off New York. The commenter 

wanted to know how it is that NMFS 

can conclude they are overfished. 

Response: During the last 20 years, 

the spawning stock biomass of albacore 

has declined significantly, according to 

the SCRS. The most recent SCRS stock 

assessment (reviewed in 2004, using 

catch at age data from 2003 to update 

the 2000 assessment) for albacore, 

indicates that the spawning stock 

biomass is 30 percent below maximum 

sustainable yield. A new assessment is 

anticipated in 2007. According to the 

Magnuson-Stevens Act, a stock is 

overfished if the level of fishing 

mortality is greater than the capacity of 

that fishery to produce the maximum 

sustainable yield on a continuing basis. 

The presence of fish therefore, does not 

necessarily mean that a stock is not 

overfished. However, NMFS recognizes 

the seasonal nature of the albacore 

fisheries and will take this into account 

in developing management measures as 

needed. 

B. Finetooth Sharks 

Comment 1: NMFS received several 

comments in support of seasonal 

commercial gillnet fishing restrictions to 

reduce finetooth shark fishing mortality, 

including one from the South Atlantic 

Fishery Management Council. These 

comments included: If seasons of high 

finetooth shark landings can be 

identified from the observer program, 

landings, or other data, then we suggest 

closing the small coastal shark fishery 

during that season for gillnetters, or 

having shark fishermen move offshore 

into deeper waters away from where 

finetooth sharks are typically found; 

fishing on these schools during pupping 

season may have significant biological 

implications; and, the seasonality of 

finetooth shark pupping should be 

investigated to determine whether some 

finetooth shark bycatch is more 

biologically significant than others. 

Response: Seasonal closures of 

commercial gillnet fisheries landing 

finetooth shark were not analyzed as 

part of alternative D2 (implement 

commercial management measures to 

prevent overfishing of finetooth sharks), 

however, these closures may be 

considered in the future, as necessary, 

to reduce fishing mortality. Closing the 

small coastal shark fishery will not 

prevent dead discards, or account for 

finetooth that are landed in other 

fisheries such as the Spanish mackerel 

fishery. In the Final Consolidated HMS 

FMP, trips that landed finetooth sharks 

between 1999 - 2004, according to the 

Coastal Fisheries Logbook data, were 

analyzed by gear and month. These data 

indicate that the number of trips landing 

finetooth sharks increases in October 

and November. This could be attributed 

to finetooth sharks moving in schools 

southward from the Carolinas to warmer 

waters off Florida in these months 

leading to an increase in finetooth 

landings. Furthermore, there is an 

expansion of fishing effort targeting 

Spanish mackerel as these fish are also 

moving south to Florida in October and 

November each year, which might also 

lead to increased landings during this 

period. 

Commercial shark gillnet fishermen 

are already subject to stringent 

regulations during October and 

November including: prohibitions on 

fishing in state waters of FL, GA, and SC 

with gillnets longer than 100 ft.; the 

directed shark gillnet fishery in Federal 

waters is subject to 100 percent observer 

coverage and the use of VMS in the 

vicinity of the Southeast U.S. Restricted 

Area for north Atlantic right whales 

between Savannah, GA and Sebastian 

Inlet, FL; and, all gillnet fishermen are 

prevented from deploying shark gillnets 

(stretched mesh >5 in.) in the Southeast 

U.S. Restricted Area between November 

15 and March 31 every year. Since most 

states in the region have already banned 

gillnet gear, and because most of the 

fishing pressure on finetooth sharks 

occurs after they have already given 

birth to their pups in the spring and 

summer in coastal waters (6.5 - 23 ft 

water depth), seasonal closure during 

pupping season may not be warranted. 

Fishermen are not able to target 

finetooth sharks when fishing with 

gillnets because it is a non-selective 

gear. Therefore, any management 

measures solely directed at fishermen 

using gillnet gear and in possession of 

a commercial shark permit could be 

circumvented, as fishermen could 

continue to use gillnets as an authorized 

gear for Spanish mackerel or in other 

fisheries pursuing currently unregulated 

species. Furthermore, closures may 

result in increased fishing effort in other 

areas or seasons, which could increase 

dead discards of finetooth sharks. 

Comment 2: NMFS received several 

comments in support of the preferred 

alternative for finetooth shark 

management, including: identifying 

sources of finetooth shark fishing 

mortality to target appropriate 

management actions is appropriate; the 

occurrence of overfishing is a function 

of data deficiency; I agree with the 

preferred alternative; we need 

clarification about the landings 

information in the SCS assessment; I 

support the preferred alternative and the 

stock assessment; I applaud NMFS for 

taking the approach with the level of 

uncertainty; NMFS scientists cautioned 

the reader about conclusions made for 

finetooth and blacknose shark; ASMFC 

is trying to address these issues; we 

need to know which fishery is catching 

these fish; I know that under the law we 

are supposed to reduce mortality, but I 

think that we need more information; 

we support alternative D4 because it is 

critical to improve the assessment for 

finetooth sharks in 2007; NMFS should 

wait on the updated assessment results 

for finetooth sharks before attempting a 

quota reduction on the commercial 

shark fishermen; the March 2002 SCS 

assessment did not have bycatch 

estimates to include with the short catch 

and catch per unit of effort (CPUE) 

series, as well as no catch for finetooth 

and blacknose sharks, which may have 

affected the results; if the majority of 

mortality occurs in non-HMS fisheries, 

why should HMS fishermen have to 

solve the problem; and if there is little 

connection to HMS, and if we want to 

get to fishing mortality, we need to 

collect information. 

Response: NMFS agrees that 

implementing a plan for preventing 

overfishing of finetooth sharks is 

necessary, and that appropriate 

measures are included in selected 

alternative D4 (identify sources of 

finetooth shark fishing mortality to 

target appropriate management actions). 

The majority of finetooth sharks are 

landed in the South Atlantic region 

(primarily Florida) by vessels deploying 

non-selective gillnet gear and in 


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possession of both a Spanish mackerel 

permit and a commercial shark permit, 

and/or targeting species that are 

currently unmanaged (i.e., kingfish). 

Thus, any management measures that 

are solely directed at fishermen using 

gillnet gear and in possession of a 

commercial shark permit could be 

circumvented by fishermen, as they 

could continue using gillnets as an 

authorized gear while pursuing Spanish 

mackerel or other currently unregulated 

species. Reducing finetooth shark 

fishing mortality through regulations 

directed at commercial shark permit 

holders is further confounded because 

finetooth sharks are within the SCS 

complex, which is not currently 

overfished or experiencing overfishing, 

and because commercial fishermen have 

only caught, on average, 20 percent of 

the SCS quota between 1999 - 2004. 

Finetooth sharks have a tendency to 

‘‘roll’’ upon contact with gillnets and 

are, therefore, often dead at haulback. 

Observer data from the five vessels 

targeting sharks indicate that they are 

only responsible for a small portion of 

the commercial finetooth shark 

landings. Most of the gillnet vessels in 

the South Atlantic region have permits 

for both HMS and non-HMS species. If 

gillnets were no longer an authorized 

gear for harvesting HMS, vessels will 

continue to discard dead finetooth 

sharks that are caught as bycatch in 

other non-HMS fisheries. Furthermore, a 

fishery closure could lead to adverse 

economic impacts and unknown 

ecological impacts as this displaced 

fishing effort will likely shift to other 

fisheries or increase fishing pressure on 

LCS using bottom longline gear. 

Recreational landings of finetooth 

sharks only comprise 10 percent of 

annual finetooth shark landings, on 

average. These recreational landings of 

finetooth sharks translate to 

approximately 1.5 percent of the 

landings within the SCS complex. 

In 2002, NMFS conducted a stock 

assessment for all SCS, including 

finetooth sharks. The catch rate series 

data were combined with life history 

information for finetooth sharks and 

evaluated using several stock 

assessment models. The lack of bycatch 

data in the catch series data led to low 

values of MSY predicted for finetooth 

sharks in the SCS stock assessment 

(especially those obtained through the 

SPM models). This lack of bycatch data 

and shorter catch and catch per unit 

effort (CPUE) series, coupled with no 

catches reported in some years, led to 

some uncertainty in the stock 

assessment for finetooth sharks. In the 

case of finetooth sharks, model 

estimates of recent F levels are above 

Fmsy, indicating that recent levels of 

effort directed at this species, if 

continued, could result in an overfished 

status in the relatively near future. 

NMFS continues to explore which 

vessels may be engaged in fisheries that 

harvest finetooth sharks and intends to 

conduct a new SCS stock assessment 

following the Southeast Assessment, 

Data, and Review (SEDAR) process 

starting in 2007. The selected 

alternative, which will identify sources 

of finetooth mortality to target 

appropriate management measures, is 

expected to increase the amount of 

available catch series and bycatch data 

by expanding existing observer 

programs and contacting state and 

Federal fisheries management entities to 

collect additional landings data, which 

may be available for the upcoming stock 

assessment. The selected alternative is a 

critical component, and a necessary 

step, in NMFS’s plan to end overfishing 

of this species to comport with National 

Standard 1 requirements. 

ASMFC is in the initial steps of 

developing an interstate FMP for coastal 

sharks. ASMFC staff has drafted a 

Public Information Document (PID), 

equivalent to a Scoping Document 

drafted prior to initiating a fishery 

management plan. The PID is currently 

available online at www.asmfc.org. 

Comment 3: NMFS received several 

comments either opposing the selected 

alternative (identify sources of finetooth 

shark fishing mortality to target 

appropriate management actions), or 

expressing concern over the fact that 

more progress has not already been 

made to prevent overfishing of finetooth 

sharks, including: NMFS determined 

that finetooth sharks were subject to 

overfishing three years ago and the 

current preferred alternative simply 

collects more data on sources of 

mortality for the species; it has already 

taken three or more years to amend this 

plan; NMFS should reconsider 

proposing more specific management 

measures in this Draft Consolidated 

HMS FMP to conserve finetooth sharks; 

we have a species that is in trouble, and 

under the law, you need to do 

something; we are disappointed that 

you are picking an alternative that will 

not do anything for the mortality; you 

need to change the preferred alternative 

to something more conservationoriented; NMFS has not done anything 

in the past 4 years and finetooth has 

overfishing occurring; we support 

alternative D4, but note our 

disappointment that NMFS has not 

already directed the appropriate 

Regional Council to take action to end 

the overfishing of finetooth sharks; 

NMFS should contact states directly as 

they should be more than willing to 

provide information; NMFS has made 

some steps forward in collecting more 

information, however, NMFS must work 

harder to get more data; and, NMFS 

needs to develop and pursue specific 

management measures to end finetooth 

shark overfishing. 

Response: The selected alternative 

(identify sources of finetooth shark 

fishing mortality to target appropriate 

management actions) will implement an 

effective plan to prevent overfishing. 

Based on the best available information 

on the fisheries that interact with 

finetooth sharks, management actions 

that affect only HMS fisheries will not 

adequately address the overfishing of 

finetooth sharks. The majority of 

finetooth shark landings occur in 

commercial fisheries deploying a nonselective gear (gillnets) in a region 

(south Atlantic) where other non-HMS 

fisheries also deploy gillnets. Thus, 

measures that prohibit the use of 

gillnets for landing sharks (alternative 

D2, implement commercial management 

measures to reduce fishing mortality of 

finetooth sharks), if aimed exclusively at 

the commercial shark gillnet fishery, 

will not prevent overfishing of finetooth 

sharks. Most of the five vessels that 

comprise the commercial shark gillnet 

fishery also possess Spanish mackerel 

permits. If gillnets were not allowed for 

the harvest of sharks, these vessels 

could continue to deploy gillnets to 

catch other species, including Spanish 

mackerel, catch finetooth sharks 

incidentally, and then discard dead 

finetooth sharks. Finetooth sharks are 

caught in a wide range of gillnet mesh 

sizes and are often dead at haulback, 

rendering trip limits and/or gear 

modifications ineffective at preventing 

overfishing because dead sharks would 

continue to be discarded. Mortality of 

finetooth sharks in fisheries outside the 

jurisdiction of HMS (state waters) or in 

unregulated fisheries in Federal waters 

(i.e., kingfish) would also be unaffected. 

The selected alternative will provide 

additional information on finetooth 

shark landings to allow enactment of 

comprehensive, collaborative measures 

that effectively reduce finetooth shark 

fishing mortality. 

The selected alternative will not 

simply collect more data. NMFS has 

already sent a letter to the South 

Atlantic Fishery Management Council 

and attended a recent meeting in 

Coconut Grove, FL (June 13–15, 2006) to 

request consideration of joint 

management initiatives. Without 

cooperative measures, vessels may be 

able to circumvent any additional 

regulations that would be enacted for 

the commercial shark fishery when 


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pursuing Spanish mackerel. The Agency 

has obtained, and will continue to 

evaluate, landings of finetooth sharks by 

non-HMS fisheries in state and Federal 

waters. Furthermore, the Agency has 

analyzed Federal logbook data to better 

understand what non-HMS fishermen 

are catching when they land finetooth 

sharks, has determined seasonality of 

landings by federally permitted 

fishermen, has analyzed the Federal 

permits of vessels that land finetooth 

sharks, and has analyzed the Florida 

trip ticket data to better understand the 

seasonality, extent of landings, and 

what permits vessels possess that are 

landing finetooth sharks in the State of 

Florida. The Agency has expanded the 

directed shark gillnet fishery observer 

program to include observer coverage on 

vessels using alternative types of gillnet 

gear (sinknet) or targeting non-HMS 

species to determine the extent of 

finetooth shark landings in these 

fisheries and added finetooth sharks to 

the select species list for bycatch subsampling in the Gulf of Mexico shrimp 

trawl fishery to monitor bycatch of 

finetooth sharks in this fishery. These 

activities will form the basis for 

implementing appropriate management 

measures to ensure that overfishing of 

finetooth sharks is prevented. 

Comment 4: There should be a cap on 

the number of vessels allowed into the 

directed shark gillnet fishery and a 

limited entry program that only allows 

the five vessels that are currently 

participating in the fishery. 

Response: NMFS does not currently 

employ a gear based permit 

endorsement for shark fisheries; rather, 

permit holders possess either directed 

or incidental permits and both permits 

are valid for any of the authorized gears 

for sharks (gillnet, bottom and pelagic 

longlines, handline, rod and reel, or 

bandit gear). NMFS did not consider 

specific permit endorsements or gearbased permits in this rulemaking, but 

may consider options to limit vessel 

participation in the shark gillnet fishery 

in the future. Logbook and permit data 

does not indicate that there has been a 

significant increase in recent years in 

the number of vessels targeting sharks 

with gillnet gear. The majority of shark 

fishermen deploy bottom longline gear 

for LCS; however, directed shark gillnet 

fishermen most frequently target SCS 

and blacktip sharks. As blacktip sharks 

and the SCS species complex are not 

overfished or experiencing overfishing, 

capping the number of vessels allowed 

into the fishery may not be justified. 

Comment 5: NMFS received several 

comments in favor of banning gillnets 

for the directed harvest of sharks, 

including: banning gillnets might help 

reduce finetooth shark mortality; in the 

absence of removing gillnets from the 

authorized HMS gear list, there should 

be a requirement for year-round use of 

VMS on gillnet boats; drift gillnets 

should be prohibited; the State of 

Georgia supports the prohibition of 

gillnet gear to target finetooth sharks to 

prevent overfishing; and, I suggest that 

this fishery be banned in the South 

Atlantic and GOM until we determine 

the status of finetooth sharks and get 

things straight with the Right whale calf 

that was caught with gillnet gear. 

Response: NMFS considered the 

prohibition of gillnet gear within 

Alternative D2 (implement commercial 

management measures to reduce fishing 

mortality of finetooth sharks). A similar 

alternative was also considered in 

Amendment 1 to the Fishery 

Management Plan for Atlantic Tunas, 

Swordfish, and Sharks. NMFS agrees 

that banning the use of gillnets for the 

five vessels that comprise the directed 

shark drift gillnet fishery may reduce 

fishing mortality of finetooth sharks. 

However, other gillnet fisheries in the 

South Atlantic that target non-HMS 

(Spanish mackerel and kingfish) would 

continue to catch finetooth sharks, and 

other species of sharks. Observer data 

indicate that the five vessels targeting 

sharks in the South Atlantic region are 

only responsible for a small portion of 

the commercial finetooth shark 

landings. Since most of the gillnet 

vessels in the South Atlantic have 

permits for both HMS and non-HMS 

(Council-managed) species, if gillnets 

were no longer an authorized gear for 

harvesting HMS, these vessels would 

continue to land, and discard dead, 

finetooth sharks caught as bycatch in 

pursuit of other non-HMS species. If 

gillnet gear were banned for HMS, 

fishermen in other fisheries would 

continue to catch finetooth sharks but 

without coordination with management 

entities and possibly without observer 

coverage. Furthermore, Federal 

regulations currently in place for the 

Southeastern U.S. Restricted Area 

prohibit the use of shark gillnet gear in 

the waters between Savannah, GA and 

Sebastian Inlet, FL. ‘‘Shark gillnet gear’’

is defined as a gillnet with stretched 

mesh greater than 5 inches. Gillnets that 

are less than 5 inches stretched mesh 

could still be deployed if the directed 

shark gillnet fishery were banned, and 

finetooth sharks would continue to be 

landed as a result. Gillnets are already 

banned in Georgia and Florida, and are 

restricted to less than 100 feet in length 

for recreational fisheries in South 

Carolina. 

VMS is a critical tool in the 

enforcement of time/area closures. 

Because no gillnet closures were fully 

analyzed in the Draft Consolidated HMS 

FMP, the requirement to use VMS on 

gillnet vessels year-round was not 

considered as an alternative in this 

rulemaking. The existing requirement 

was originally implemented in 2003 by 

Amendment 1 to the FMP for Atlantic 

Tunas, Swordfish, and Sharks, and 

requires that all vessels with gillnet gear 

onboard and a commercial shark permit 

have a functioning VMS unit onboard 

and that the unit is operational during 

all fishing activities, including 

transiting, between November 15 and 

March 31 each year. This requirement 

applies to all areas between November 

15–March 31 and not just in the vicinity 

of the Southeastern U.S. Restricted 

Area. If additional time and area 

closures were implemented outside of 

the right whale calving season, it may be 

prudent to reevaluate the need for a 

year-round VMS requirement for all 

shark drift gillnet vessels. 

The Atlantic Large Whale Take 

Reduction Team (ALWTRT) met in St. 

Augustine, FL, on April 10–11, 2006, to 

determine what course of action should 

be taken to prevent future interactions 

between right whales and gillnet gear. 

The ALWTRT did not reach consensus 

on all the management measures that 

were being considered at the meeting 

and are still deliberating on how to 

address the co-existence of gillnet 

fisheries and right whales on their 

calving grounds in the Southeastern 

U.S. Restricted Area. NMFS will work 

with the team to minimize mortality of 

these endangered marine mammals. 

Comment 6: Identification of finetooth 

sharks is difficult because they are often 

confused with blacktip sharks. 

Response: The Agency agrees that 

finetooth sharks are difficult to identify, 

especially for dealers who are required 

to positively identify shark species 

based on a log (carcass that has been 

gutted and finned). The mandatory HMS 

identification workshops for all shark 

dealers being implemented through this 

final rule will provide shark dealers 

with tools and instruction that they 

could employ to prevent misidentification of finetooth sharks, and 

minimize the likelihood of confusion 

between finetooth and other species of 

Carcharinid sharks, including blacktip. 

Comment 7: Spanish mackerel 

fishermen catch finetooth sharks 

intermixed with blacktip sharks. 

Response: An analysis of Federal 

logbook data from 1999–2004 indicates 

that 17 vessels landed finetooth sharks 

with gillnet gear and possessed both a 

Spanish mackerel and commercial shark 

permit. Since gillnets are a not selective 

gear and finetooth sharks, blacktip 


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sharks, and Spanish mackerel have 

similar temperature and habitat 

preferences, it is not unreasonable to 

assume that all three species are landed 

in some gillnet sets. The Federal 

logbook data indicated that Spanish 

mackerel were the most abundant nonHMS reported on trips that landed 

finetooth sharks and accounted for 

approximately 13.6 percent (by weight) 

of landings. 

Comment 8: NMFS states that 80 

percent of finetooth sharks are caught in 

gillnets, and the majority are landed in 

FL and GA, but gillnets are banned in 

these states. So finetooth sharks must 

not be all that coastal if they are being 

caught outside of state waters (> 3 

miles). 

Response: Generally speaking, 

finetooth sharks inhabit shallow coastal 

waters of the western Atlantic Ocean 

from North Carolina to Brazil. Finetooth 

sharks travel north to waters adjacent to 

South Carolina when the surface 

temperature of the water increases to 

approximately 20°C then return south to 

off the coast of Florida when 

temperatures fall below 20°C. Finetooth 

seem to prefer water temperatures in 

this range, and they feed primarily on 

menhaden, which are also generally 

found closer to shore. However, 

finetooth sharks are opportunistic and 

will likely inhabit more coastal state 

waters or locales offshore in Federal 

waters as oceanographic and feeding 

conditions allow. Finetooth sharks may 

not be harvested with gillnets within 

State waters of Flordia, Georgia, or 

South Carolina, however; they would 

still be vulnerable to fishing mortality 

resulting from interactions with gear in 

other fisheries and may be landed in 

Florida if they are caught in gillnets 

deployed in Federal waters. 

Comment 9: There are only five 

vessels in the fishery so where do all the 

catches come from? 

Response: The five gillnet vessels that 

target sharks with drift gillnet or 

strikenet gear are responsible for less 

than 10 percent of the commercial 

finetooth shark landings. The majority 

of finetooth sharks may be landed either 

in state waters, or by fishermen 

pursuing other species, such as those 

managed by the Gulf of Mexico or South 

Atlantic Fishery Management Councils 

(i.e., Spanish mackerel) or species that 

are not currently managed (i.e., 

kingfish). Since these fishermen hold 

directed shark permits, they can 

opportunistically keep all finetooth 

sharks; however, because their harvest 

of finetooth sharks is incidental to 

landing of other non-HMS species, these 

vessels have not been selected for HMS 

observer coverage. 

A recent analysis of landings data 

submitted via the Fishing Vessel 

Logbook/Gulf of Mexico Reef Fish/ 

South Atlantic Snapper-Grouper/King 

and Spanish Mackerel/Shark (Coastal 

Fisheries Logbook) from 1999 - 2004, 

indicates that a total of 46 vessels 

reported landings of finetooth sharks. Of 

these, 17 vessels had only a shark 

limited access permit, 17 vessels had 

both a shark and a Spanish mackerel 

permit (managed under the Coastal 

Pelagics FMP and its amendments by 

the South Atlantic Fishery Management 

Council), and 12 vessels had neither 

permit. In 2003, 15 vessels reported 

landings of finetooth sharks and all of 

these vessels had both a shark directed 

permit and a Spanish mackerel permit. 

Furthermore, since approximately 29 

vessels are either targeting other nonHMS species and keeping finetooth 

sharks opportunistically, or are not 

covered under existing management 

regimes, these vessels would likely 

continue to contribute to finetooth shark 

fishing mortality by participating in 

coastal gillnet fisheries within the 

finetooth shark’s range. 

Comment 10: NMFS received several 

comments questioning the 2002 SCS 

stock assessment, including: In 1995, 95 

percent of finetooth landings came from 

PLL and not gillnets, but in 1996–2000, 

there was a shift to gillnet, and I do not 

understand why; the document says that 

less than 1 percent came from the 

commercial fishery in the GOM, how 

can shrimp trawls not catch finetooth?; 

and, 100 percent of recreational 

landings came from the GOM, it just 

does not make any sense. 

Response: NMFS analyzed landings 

data from 1999–2004 for the analysis of 

alternatives to prevent overfishing of 

finetooth sharks in this rulemaking. It is 

possible that there are inconsistencies 

between more recent data analyzed for 

this rulemaking and data employed for 

the 2002 stock assessment. This could 

be the result of misidentification or 

misreporting of finetooth sharks, general 

lack of data for the 2002 SCS stock 

assessment, or changes in fishing effort 

that may have occurred. The commenter 

does not specify which data set in the 

2002 SCS assessment they are referring 

to; therefore, it is difficult to explain any 

potential inconsistencies. Alternative 

D4 (identify sources of finetooth shark 

fishing mortality to identify appropriate 

management actions) will include 

finetooth sharks as a select species for 

bycatch sub-sampling in the Gulf of 

Mexico shrimp trawl observer program 

which will provide additional bycatch 

and landings information from this 

fishery. In the past, finetooth sharks 

were not identified in the bycatch 

associated with shrimp trawls, however, 

they may have been present. The Marine 

Recreational Fisheries Statistics Survey 

(MRFSS) and the Texas Parks and 

Wildlife Service estimate that 14,811 

finetooth sharks were landed between 

1999 and 2005. The data used for the 

2002 SCS stock assessment indicate that 

there were several years when all of the 

recreational landings of finetooth shark 

occurred in the Gulf of Mexico. 

However, in other years, the majority of 

recreationally caught finetooth sharks 

were caught in both the South Atlantic 

and Mid-Atlantic regions. This could be 

attributed to changes in oceanographic 

conditions and/or fishing effort. 

Comment 11: NMFS should 

investigate bycatch in other areas and 

consider the suite of management 

measures by other states that may be 

affecting finetooth shark mortality. In 

the State of Texas, there are bag limits 

but no commercial fisheries. Sharks can 

only be caught on rod and reel. They 

may be sold, but only one fish per boat. 

There are also some shrimp trawl 

closures (seasonal) that may provide 

some indirect benefits for finetooth and 

other sharks. 

Response: Since this comment was 

received, NMFS has contacted the 

Regional Fishery Management Councils 

and discussed possible fisheries where 

finetooth sharks may be harvested 

incidentally. The Agency has also 

compiled a list of state and Council 

regulations that affect gillnet and bottom 

longline fisheries and therefore may 

affect finetooth fishing mortality either 

directly or indirectly. Creel surveys 

from Texas Parks and Wildlife indicate 

that on average, nine finetooth sharks 

are landed a year, with 193 landings 

documented since 1984. Shark specific 

landing restrictions similar to those 

imposed by Texas and other states, 

while helpful, may not significantly 

reduce finetooth landings as the 

majority of finetooth landings are from 

commercial fisheries in the South 

Atlantic that use non-selective gear. 

Successful management of this species 

will likely only be attained through 

cooperative efforts between the 

fishermen, States, Regional Fishery 

Management Councils, the Atlantic 

States Marine Fisheries Commission, 

and NMFS. 

Comment 12: NMFS received several 

comments expressing concerns that the 

Agency did not know where all 

finetooth shark landings are coming 

from, including: how is it that NMFS 

has catch data coming from dealers, but 

does not know which vessels are 

catching finetooth?; NMFS should call 

the dealers and find out which types of 

boats are offloading/selling the 


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finetooth; in 1999, you changed the 

criteria for boats that could get a 

directed shark permit so that the smaller 

croaker boats, etc. catch sharks, and 

they have to report to the Federal dealer, 

so you should be able to get the dealer 

information; and dealers should be 

required to provide vessel information 

with all shark landings. 

Response: General canvass data 

submitted by federally permitted shark 

dealers does not include information on 

the vessels from which seafood products 

were purchased. These reports are 

submitted every two weeks and include 

total purchases (landings) by species 

acquired by individual dealers. NMFS 

has contacted states between Texas and 

North Carolina to determine whether 

they had any records of finetooth sharks 

being landed. Many states maintain trip 

ticket programs that can be linked to 

individual vessels from which seafood 

products were purchased. This 

information was analyzed for the 

Florida trip ticket program because the 

majority of finetooth shark landings are 

occurring there. Starting in 2000, some 

Florida trip tickets reporting finetooth 

sharks identified the vessel. Of the 

vessels making these landings, six 

vessels had only a Federal shark permit, 

eight had both a Federal shark and 

Spanish mackerel permit, and three 

vessels had neither permit. The fact that 

vessels possess multiple permits 

reiterates the need for collaborative 

management efforts between NMFS, the 

Regional Fishery Management Councils, 

and individual states. 

Comment 13: NMFS received a 

comment based on the 2005 observer 

report for the Directed Shark Gillnet 

Fishery that stated that in the shark 

gillnet fishery, five vessels used three 

different fishing methods. Of the three 

methods, the strikenet gets the most 

finetooth sharks. This is a fishery that is 

targeting finetooth sharks. The average 

size is 123 cm for finetooth sharks, 

which is smaller than what the 

recreational fishery can take. 

Response: The 2005 observer report 

indicated an increase in the observed 

landings of finetooth sharks with 

strikenet gear. This gear is generally 

used to target schools of blacktip sharks, 

which are located from the air using a 

spotter plane. Historically, most 

observed landings of finetooth sharks 

occur in the drift gillnet segment of the 

fishery. 2005 may have been an 

anomalous year with regard to prey 

abundance or distribution, thereby 

making finetooth sharks more 

vulnerable to strikenet gear. Strikenet 

fishermen are subject to the same 

restrictions as other shark gillnet gear. 

The average size of finetooth sharks 

landed in 2005 was 123 cm, based on 

measurements obtained from 38 

individuals. 

Comment 14: NMFS received a 

number of comments opposed to 

alternative D2, implement commercial 

management measures to reduce fishing 

mortality of finetooth sharks, including: 

A subquota for finetooth sharks is not 

necessary; I oppose alternative D2 

unless the fishery is harvesting its entire 

commercial quota; and, we are opposed 

to alternative D2 because it appears that 

the allocated quota is not being 

overharvested. 

Response: The quota for small coastal 

sharks is not currently, and has never 

been, fully utilized. Observer data 

indicate that finetooth sharks are not the 

primary shark species harvested in the 

directed shark gillnet fishery. Since 

finetooth sharks have a tendency to roll 

upon contact with gillnet gear, 

prohibiting landings of finetooth sharks 

would not reduce fishing mortality, as 

most of these fish would then be 

discarded dead. Additional dead 

discards may encourage fishermen to 

make more trips to replace lost 

revenues, leading to more dead discards 

and an increase in fishing mortality 

level. Since the rest of the SCS complex 

is not experiencing overfishing and is 

not overfished, reducing the overall SCS 

quota was not considered in this FMP. 

Comment 15: NMFS received several 

comments in support of alternative D3, 

implement recreational management 

measures to reduce fishing mortality of 

finetooth sharks, including: I support 

alternative D3 because between 2000 

and 2003, 6,732 and 5,742 finetooth 

sharks were reported to MRFSS. What is 

the expansion? What are the postrelease mortality estimates?; recreational 

landings of finetooth sharks may cause 

the majority of mortality for yet another 

HMS species; mandatory circle hooks 

would reduce mortality; it appears that 

the actions described in the preferred 

alternative only intend to pursue 

commercial mortality and ignore 

recreational mortality; there is a 

problem with shark reporting and 

MRFSS; no one reports finetooth sharks 

to the Councils; and MRFSS does not 

have sharks listed, but that is where I 

would suggest looking for information. 

Response: NMFS is not selecting 

recreational measures (alternative D3) to 

reduce fishing mortality of finetooth 

sharks, at this time, because the vast 

majority of finetooth sharks are landed 

commercially, most recreational 

fisheries for finetooth sharks are likely 

in state waters, and there is no 

conclusive evidence that circle hooks 

would reduce post hooking release 

mortality of finetooth sharks. Between 

1999 and 2004, average landings of 

finetooth sharks in recreational and 

commercial fisheries were 11.2 (10 

percent) and 93.6 (90 percent) mt dw/ 

year, respectively. MRFSS data would 

include landings of finetooth sharks in 

state waters, which is where most 

finetooth sharks are found, however, 

NMFS can not directly implement 

regulations in state waters. A study by 

Gurshin and Szedlymayer (2001) 

estimated that only 10 percent (1 of 10 

captured) of sharpnose sharks, a similar 

species, died as a result of capture on 

hook and line. Post release mortality 

depends on water temperature, hook 

used, whether or not live bait is used, 

and the overall condition of the shark at 

hooking. Estimates of finetooth shark 

landings were obtained from MRFSS 

and included in this rulemaking. NMFS 

also does not prefer recreational 

measures at this time because there is 

already a conservative bag limit in place 

and a minimum size well above the size 

at first maturity. Recreational measures 

may be considered in the future as 

necessary. NMFS will continue to 

explore all sources of finetooth shark 

fishing mortality, both recreational and 

commercial, and will consider further 

exploration of the landings reported to 

NMFS and individual states. 

Comment 16: Due to the lack of 

progress towards ending overfishing, 

finetooth sharks should be added to the 

prohibited species list while means to 

reduce mortality are investigated. 

Response: NMFS considered, but did 

not analyze, an alternative that included 

adding finetooth sharks to the 

prohibited species list for Atlantic 

sharks. Presently, finetooth sharks do 

not meet any of the four criteria defined 

under 50 CFR 635.34(c) for inclusion of 

species to the prohibited species list. 

The existing criteria are: (1) there is 

sufficient biological information to 

indicate the stock warrants protection, 

such as indications of depletion or low 

reproductive potential or the species is 

on the ESA candidate list; (2) the 

species is rarely encountered or 

observed caught in HMS fisheries, (3) 

the species is not commonly 

encountered or observed caught as 

bycatch in fishing operations, or (4) the 

species is difficult to distinguish from 

other prohibited species (i.e., look alike 

issue). With regards to these criteria, 

finetooth sharks are not currently 

overfished, are commonly encountered 

and observed in HMS fisheries, are 

commonly caught as bycatch in nonHMS fisheries, and are distinguishable 

from prohibited species upon capture 

(prior to dressing). As new biological 

and fishery data becomes available, 

NMFS may make adjustments to the 


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prohibited species list, as needed in the 

future. 

C. Atlantic Billfish 

i. ICCAT Landing Limits 

Comment 1: NMFS received a number 

of basic questions pertaining to the 

history, data, U.S. actions, and the 

requirements of the ICCAT marlin 

recommendations. The comments 

included: Where did the 250 marlin 

limit come from? What was the 

biological data used to limit the 

recreational harvest of blue and white 

marlin to 250 fish?; has the 250 white 

marlin limit ever been exceeded?; what 

is the harvest quota for the commercial 

harvest of blue and white marlin?; what 

is the breakdown of white and blue 

marlin bycatch compared to the 

recreational catch?; and, where does 

NMFS get the authority to establish a 

quota (250–fish marlin limit)? 

Response: The annual landing limit of 

250 recreationally caught blue and 

white marlin, combined, stems from 

ICCAT Recommendation 00–13. ICCAT 

recommendations are binding 

instruments that the United States, as a 

contracting party to ICCAT, is obligated 

to implement. Recommendation 00–13 

was proposed by the United States and 

established a number of additional 

stringent conservation measures 

intended to improve the stock status of 

Atlantic marlin. The 250 marlin limit 

was the result of a dynamic 

international negotiation at ICCAT that 

included, and was supported by, the 

U.S. recreational, commercial, and 

government commissioners. 

Considerations in the U.S. negotiating 

position included, but were not limited 

to, data from the Recreational Billfish 

Survey and the Marine Recreational 

Statistics Survey, and intentionally 

included a buffer to account for changes 

in the fishery and improved monitoring. 

The Atlantic Tunas Convention Act 

provides NMFS with the regulatory 

authority to implement ICCAT 

recommendations by authorizing the 

promulgation of regulations as may be 

necessary and appropriate to implement 

binding recommendations adopted by 

ICCAT. The 250 marlin limit is for both 

blue and white Atlantic marlin 

combined, and was exceeded for the 

calendar year 2002, when the U.S. 

reported 279 recreationally landed 

marlins. This exceedance was the result 

of methodological change that was 

applied to U.S. recreational landings 

retroactively. Further, while the United 

States exceeded its landing limit in that 

one year, the United States remained in 

compliance with Recommendation 00–

13 because, as allowed by ICCAT 

Recommendation 00–14, the U.S. 

underharvest from 2001 was applied to 

the ‘‘negative’’ 2002 balance and was of 

sufficient magnitude to allow the United 

States to comply with the 

recommendation. The United States 

does not have a commercial quota or 

allowable level of landings for Atlantic 

billfish. Commercial possession and sale 

of Atlantic billfish have been prohibited 

since 1988 in the United States. 

Internationally, commercial quotas vary 

by country. Foreign pelagic longline and 

purse seine vessels, the gear types that 

dominate commercial Atlantic billfish 

landings, are restricted to 50 percent 

and 33 percent of Atlantic blue and 

white marlin landings, respectively, 

from the years 1996 or 1999, whichever 

is greater. The breakdown of domestic 

commercial and recreational harvests 

varies considerably by year and are 

presented in detail in Chapter 4 of the 

Final Consolidated HMS FMP. For the 

period 1999 - 2004, pelagic longline 

dead discards and recreational harvests 

of Atlantic blue marlin averaged 44.2 

metric tons (mt) and 22.9 mt, 

respectively; Atlantic white marlin 

averaged 31.8 mt and 2.3 mt, 

respectively; and Atlantic sailfish 

averaged 24.5 mt and 81.6 mt, 

respectively. These numbers do not 

necessarily reflect the true mortality 

contributions of each sector to the 

fishery. Recent data on post-release 

mortality indicates that the aggregate 

domestic recreational billfish mortality 

contribution may be equal to, or greater 

than, the aggregate domestic pelagic 

longline billfish mortality contribution, 

in some years, and may be the result of 

the substantial difference in the scale of 

these fisheries. 

Comment 2: NMFS received public 

comment both endorsing and opposing 

preferred alternative E6, Implement 

ICCAT Recommendations on 

Recreational Marlin Landings Limits, for 

widely varying reasons, and with 

varying qualifiers. Comments in support 

of this preferred alternative included: 

We endorse alternative E6; I support 

alternative E6 because it has been five 

years since the ICCAT recommendation 

and we need stricter regulations; NMFS 

has to implement alternative E6 to 

comply with international obligations; 

NMFS must codify the 250–fish marlin 

limit because it came as a quid pro quo 

with other countries agreeing to 

measures. If the U.S. does not codify the 

250–fish limit, it will result in loosening 

of restrictions in other countries, which 

we do not want; if something is not 

done now, ESA will take all the 

fisheries away from us. We should show 

we are doing all we can to stop the 

killing of marlin. NMFS should 

implement the 250 marlin limit and the 

calendar year; I’m not opposed to the 

250–fish limit (alternative E6), but 

somehow the U.S. got into a bad deal 

and is stuck with it; and I support 

alternative E6 only if the original 

accounting system (RBS data) is used to 

count U.S. landings. 

Response: NMFS agrees that the 

United States is obligated to implement 

the 250 recreationally caught Atlantic 

marlin landing limit and that more 

needs to be done to reduce fishing 

mortality levels on these species if they 

are to recover. The U.S. landing limit 

was part of a comprehensive plan to 

begin the process of rebuilding Atlantic 

marlins and that obligated other nations 

to make substantial sacrifices on behalf 

of their fishing interests. NMFS shares 

concerns that a failure of the United 

States to fully implement an ICCAT 

recommendation may allow other 

nations to rationalize non-compliance 

on their behalf. NMFS further 

acknowledges that domestic 

implementation of the 250 Atlantic 

marlin landing limit has taken longer 

than anticipated. The United States has 

led international conservation efforts on 

Atlantic marlin and other species and 

will maintain its credibility and 

leadership role on these issues by fully 

implementing its international 

obligations through the adoption of the 

selected alternatives. 

NMFS believes that adoption of 

ICCAT recommendation 00–13 was an 

important step toward stemming longterm declines in Atlantic marlin 

populations and rebuilding their 

populations. Under this agreement, the 

U.S. was limited to landing 250 

recreationally caught blue and white 

marlin combined on an annual basis, as 

previously discussed. The U.S. has 

reported marlin landings below the 250 

fish limit in three of the previous four 

years. Other ICCAT nations whose 

fishermen catch and sell Atlantic marlin 

were obligated to reduce their pelagic 

longline and purse seine landings of 

blue marlin by 50 percent and white 

marlin by 67 percent. The 

recommendation also required release of 

live marlins brought to the vessel along 

with other various restrictions. As 

conditions in the fishery change, NMFS 

will continue to review the 

appropriateness of measures contained 

in the ICCAT recommendations and 

seek changes as appropriate. 

NMFS acknowledges the concerns 

expressed by anglers regarding the use 

of a different accounting methodology 

for compliance purposes than was 

originally used to contribute to the 

negotiation of the 250 marlin limit. 


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However, as discussed in the response 

to Comment 1, the 250 marlin limit was 

based in part on RBS and MRFSS data, 

but also intentionally included a buffer 

to account for changes in the fishery and 

improved monitoring. The number was 

the result of a negotiation at ICCAT and 

not a specific scientific methodology. 

Under the recommendation, the United 

States is obligated to report all verifiable 

recreational landings of Atlantic blue 

and white marlin for compliance 

purposes. New sources of data on 

domestic recreational landings have 

been developed since the 2000 

negotiation, including catch-card 

programs in North Carolina and 

Maryland as well as the billfish and 

swordfish reporting line, which provide 

a small number of additional marlin 

each year. These sources of data have 

represented a very limited number of 

verifiable fish in any given year, with 

tournaments representing the majority 

of landings. 

Comment 3: Comments opposing 

preferred alternative E6, Implement 

ICCAT Recommendations on 

Recreational Marlin Landings Limits, 

included: We cannot comprehend why 

NMFS, knowing of our small percentage 

of the harvest would even consider 

establishing severe restrictions on the 

recreational harvest; this alternative A6 

is unnecessary and arbitrary and should 

be eliminated, especially since the 

fishery is mostly catch and release; it 

should be removed at the 2006 ICCAT 

meeting; from a conservation and 

negotiating standpoint, the 250 landing 

cap is neither needed nor of any value 

to the United States; mandating this cap 

when low marlin landings are already 

driven by a strong, voluntary 

conservation ethic will do little or 

nothing to reduce overall marlin 

mortality; why implement increased 

size limits to avoid reaching the 250 

mark, when the existing regulations 

seem to work?; there should be a 

provision for underages and overages; 

the 250 marlin limit derives only from 

tournament landings and is not an 

appropriate limit for the fishery as a 

whole; if NMFS restricts landings of 

marlin species to 250 fish and prohibits 

white marlin catches for five years, 

tournament fishing will take a massive 

economic hit. Towns that host 

tournaments would have to rely on an 

alternative form of tourism; I oppose 

Alternative E6 because it will cause 

economic harm, unless anglers switch to 

blue marlin; 250 fish are insignificant 

compared to longline bycatch mortality; 

and alternative E6 is problematic 

considering the unknown landings in 

the Caribbean. The large landings of 

blue marlin in Puerto Rico can be 

addressed through enforcement of 

existing management measures 

(minimum size, no sale, etc.); and, we 

must address the foreign sources of 

billfish mortality at ICCAT if we are to 

achieve the recovery of billfish stocks. 

Response: NMFS disagrees that the 

selected alternative to implement the 

ICCAT established recreationally caught 

marlin landing limit, is unnecessary or 

arbitrary. This alternative will 

implement U.S. obligations negotiated 

as part of a key international agreement 

that has the potential to dramatically 

reduce fishing mortality of Atlantic 

marlins. As discussed in the response to 

Comment 1, the United States is 

obligated to implement ICCAT 

recommendations under the Atlantic 

Tunas Convention Act. Further, to 

maintain credibility and leadership on 

international billfish conservation 

issues, and limit opportunities for 

foreign nations to rationalize potential 

non-conformity with billfish 

conservation measures, the United 

States must abide by its international 

obligations. Unilateral elimination of 

the 250 marlin landing limit is not an 

option available to the United States. 

However, should ICCAT choose to do so 

during a future Commission meeting, it 

could remove the restriction thereby 

allowing the United States to follow 

suit. The implementation of U.S. 

international obligations is critical to a 

credible negotiating position and 

reduces the ability of other nations to 

rationalize potential non-conformity 

with international billfish conservation 

measures. Under the selected 

alternative, size limits will only increase 

if the United States is approaching its 

250 marlin limit. The intent of a 

potential in-season minimum size limit 

increase is to minimize impacts to the 

fishery by slowing landings and 

allowing the fishery to continue until 

the 250 fish limit is reached but not 

exceeded. Allowing landings to 

continue at a slower pace over a longer 

period in the fishing year is anticipated 

to have fewer socio-economic impacts 

than a shift to catch and release only 

fishing earlier in a given year. 

Consistent with ICCAT 

Recommendation 00–14, this rule 

mandates carry-over of overharvest and 

allows for carry-over of underhavest. 

The 250 marlin limit did not stem from 

only tournament landings. The 250 fish 

limit is appropriate for the U.S. directed 

billfish fishery at this time. NMFS 

disagrees that implementation of the 

250 marlin limit will cause substantial 

adverse economic impacts. As discussed 

in the response to Comment 2, the 

United States has landed only 75 

percent of its landing limit, on average, 

over the past four years and in half of 

the years reviewed, the United States 

has been 40 percent below the allowable 

landing limit for recreationally caught 

Atlantic marlin. 

Further, this rule to implement the 

ICCAT recreational marlin landings 

limit was specifically designed to 

minimize economic impacts if fishing or 

retention patterns change and cause the 

United States to approach the 250 

marlin limit. Should the 250 marlin 

limit be achieved, because few marlin 

are landed (see the response to 

Comment 2), NMFS believes that it 

would occur relatively late in the 

fishing season, thereby affecting a 

limited number of fishery participants 

and resulting in relatively minor 

impacts to the fishery as a whole. There 

could potentially be heightened 

localized impacts in a small number of 

communities, where, for instance, 

tournament participation may be 

reduced or a tournament cancelled. 

However, based on the significant level 

of catch and release fishing practiced in 

the Atlantic billfish fishery (75 to 99 

percent), NMFS believes any reductions 

in participation would be minor as 

fishermen could still catch and release 

Atlantic marlin. 

Based on public comment that 

indicated more substantial concerns 

over potential adverse economic 

impacts to the fishery if catch and 

release only fishing for Atlantic white 

marlin were required, as well as a 

number of other factors including, but 

not limited to, the impending receipt of 

a new assessment for Atlantic white 

marlin, upcoming international 

negotiations on Atlantic marlin, and a 

somewhat limited ecological benefit, 

NMFS did not select the alternative to 

allow catch and release only fishing for 

Atlantic white marlin. NMFS 

acknowledges that the 250 recreational 

marlin allocated to the United States 

represent a small portion of total billfish 

mortality from the full ICCAT pelagic 

longline fleet. However, from a domestic 

perspective, if the full allocation of 250 

marlin was landed by the recreational 

sector, it would represent approximately 

one-third (35 percent) of the annual 

number of Atlantic marlin (blue and 

white combined) discarded dead from 

the domestic pelagic longline fleet, on 

average, over the four year period 2001–

2004. Total mortality inflicted upon the 

stock is of more importance to the 

overall health of the stock than landings 

or dead discards. As noted in the 

response to Comment 1, recent 

estimates and data on post-release 

mortality indicate that the aggregate 


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domestic recreational white marlin 

mortality contribution may be equal to 

or greater than the aggregate domestic 

pelagic longline white marlin mortality 

contribution, in some years. This 

appears to be a result of the substantial 

difference in the scale of these fisheries. 

NMFS acknowledges that there is some 

uncertainty associated with marlin 

landings statistics from the U.S. 

Caribbean, and the Agency is working to 

improve these statistics by increasing 

enforcement of existing permitting and 

reporting requirements, including those 

for tournaments. Finally, NMFS agrees 

that foreign sources of billfish mortality 

must be addressed at ICCAT if Atlantic 

billfish stocks are to recover. As such, 

the United States will continue its 

efforts to champion billfish conservation 

at ICCAT and in other appropriate fora. 

Comment 4: NMFS received a number 

of comments asking for clarification of 

authority and the regulations pertaining 

to the potential implementation of 

alternative E6, Implement ICCAT 

Recommendations on Recreational 

Marlin Landings Limits, including: 

Would the ‘‘priority’’ be given to 

tournaments in catching the 250 fish 

limit?; if 20 tournament boats catch and 

release 10 fish in the season, what are 

the rest of the private and recreational 

anglers and thousands of boats to do? 

Can the unharvested portion of the 250 

fish limit be carried over into the next 

year? Once the quota is established, 

which we have never approached, 

except for the year NMFS counted 

differently, then what happens?; and, 

does the U.S. have the authority to 

reduce the 250–fish limit? It goes 

against ICCAT. In every other case, the 

U.S. must give fishermen a reasonable 

opportunity to catch fish. 

Response: The 250 recreationally 

caught marlin landing limit applies to 

the Atlantic recreational billfish fishery 

as a whole. NMFS does not intend to 

assign Atlantic marlins that are 

available for landing to any particular 

sector or component of the recreational 

fishery in this rulemaking. NMFS 

appreciates the concern expressed by 

some anglers regarding the opportunity 

to land a fish, given the large number of 

participants in the fishery. However, the 

United States has been bound by the 

250 recreationally caught Atlantic 

marlin landing limit since June of 2001, 

and only in one year has that 250 fish 

number been achieved, as previously 

discussed. Under this rule to implement 

ICCAT recommendations on 

recreational marlin landings limits, if 

the landings limit is approached, 

regardless of whether those fish are 

landed by a small number of vessels or 

by many individual vessels, the Agency 

will consider the appropriateness of an 

inseason minimum size increase or 

prohibition on retention based on the 

criteria identified in the discussion of 

the selected alternative in Chapter 4 of 

the Final Consolidated HMS FMP, and 

contained in this final rule. Even if 

retention were prohibited for the 

remainder of a given fishing year, 

anglers could continue catch-andrelease fishing for Atlantic marlin, and 

Atlantic sailfish would be available for 

landing. As previously discussed, 75 to 

99 percent of all billfish are currently 

released on a voluntary basis, so NMFS 

anticipates little disruption in the 

fishery, should either a minimum size 

increase or a catch-and-release fishery 

become necessary. As discussed in the 

response to Comment 3, consistent with 

ICCAT Recommendation 00–14, this 

rule will mandate carry-over of 

overharvest and will allow for carryover of underhavest into the next 

management period. The Agency will 

monitor recreational landings of 

Atlantic blue and white marlin and will 

make decisions as appropriate regarding 

in-season management actions based on 

the decision criteria identified in the 

HMS FMP and in this final rule. NMFS 

is not reducing the 250 recreationally 

caught marlin landings limit. 

Comment 5: NMFS received a number 

of suggestions for substitute alternatives 

to preferred alternative E6, including: 

Spread the 250 fish limit over 12 

months so that all areas get to land 

marlin (spatial and temporal); divide the 

250 fish limit up by state. Let the states 

exchange billfish for bluefin tuna quota 

until each state can support the 

tournaments they need to; white and 

blue marlin should have separate limits 

because they are such different animals; 

and, not landing the 250 marlin 

recreational landing limit and 

eliminating the entire commercial 

billfish harvest could not solve any of 

the problems. To solve the problem, the 

United States should prohibit the 

importation of billfish, swordfish, and 

tuna from other countries. 

Response: NMFS appreciates these 

comments and suggestions. ICCAT 

recently conducted a stock assessment 

of blue and white marlin. As such, 

ICCAT may reconsider the existing 

management measures for marlin. If this 

occurs, NMFS may consider these and 

other options as needed, if necessary 

and appropriate, in a future rulemaking. 

Comment 6: I am opposed to counting 

fish that are caught by U.S. vessels 

fishing abroad against the United States’

quota. 

Response: Consistent with its ICCAT 

obligations, the United States accounts 

for all recreational landings of Atlantic 

marlin by U.S. citizens. If an angler 

onboard a U.S. flagged vessel fishing in 

foreign waters or on the high-seas lands 

a fish, then the vessel owner, or their 

designee, is required to report that fish 

to NMFS. 

Comment 7: The British Virgin 

Islands (BVI) have separate regulations 

from the U.S. International coordination 

on HMS management is critical. In 15 

minutes time, we can be out of U.S. 

Virgin Island waters. For us, the 

importance is the coordination of 

international HMS management. The 

BVI folks can catch and sell their 

billfish. What is being done on the 

international front to resolve these types 

of conservation concerns? The Draft 

Consolidated HMS FMP does not 

include anything that addresses 

international coordination efforts. 

Response: NMFS appreciates the 

frustration felt by anglers in the 

Caribbean regarding the current 

differences in regulations between the 

U.S. and the BVI. The Agency also 

agrees that Atlantic billfish management 

requires international cooperation to be 

successful. However, these types of 

international management issues are 

beyond the scope of this domestic 

rulemaking, and, as such, this final rule 

and the Final Consolidated HMS FMP 

do not address relations between the 

United States and the British Virgin 

Islands or any other nation on any 

subject. International management 

issues are handled jointly between 

Department of Commerce and the 

Department of State. 

Comment 8: Will the ICCAT landing 

limit be placed under ‘‘Quotas’’ in the 

Code of Federal Regulations (CFR), so 

that it will be easy to update annually 

as with tuna and swordfish quotas? 

Response: The majority of the 

regulatory text associated with ICCAT 

landing limits is contained in 50 CFR 

635.27(d). This section also includes the 

Atlantic tunas and swordfish quotas, 

and is the most appropriate place for the 

marlin regulations. 

Comment 9: NMFS received a number 

of comments on the potential impacts of 

the 250 marlin limit in combination 

with the possible shift to only catch and 

release fishing for Atlantic white marlin, 

including: the U.S. will catch the 250–

fish limit if white marlin landings are 

prohibited, because catches of other 

species will be redistributed. When you 

ban white marlin, people will fish for 

blue marlin. The bigger Northeast 

tournaments will fish harder on blue 

marlin; it’s not desirable to make all of 

the fish under the limit be blue marlin; 

with the proposed change in the fishing 

year, some tournaments could be 


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penalized if they take place after the 

250–fish limit is exceeded. 

Response: Based on public comment 

expressing concern over the ratio of 

potential adverse economic impacts to 

estimated ecological benefits, the 

prospect of a new international 

assessment, an impending international 

negotiation, and other factors, NMFS 

does not prefer to implement catch and 

release only fishing for Atlantic white 

marlin at this time. NMFS disagrees 

with the characterization that some 

tournaments may be penalized if they 

take place after the 250 fish limit is 

exceeded. The United States has been 

bound by the 250 fish limit since it went 

into effect at ICCAT in June of 2001. 

Since then, the only mechanism that the 

Agency had available to address 

fulfillment of the 250 marlin landing 

limit was to implement an emergency 

closure of the fishery. Thus, any 

tournament that would have occurred 

after the 250 fish limit had been 

reached, even prior to this action, would 

have been required to operate on a catch 

and release basis only. However, they 

would have had little warning. This rule 

was specifically designed to minimize 

the likelihood of a shift to catch and 

release only fishing for Atlantic marlin. 

It will allow the Agency to slow marlin 

landings by quickly increasing 

minimum size(s) for the specific 

purpose of avoiding a mandatory shift to 

catch and release only fishing for 

Atlantic marlin, if possible, to minimize 

adverse impacts. If the ICCAT 

recreationally caught marlin landings 

limit is still achieved, despite the 

minimum size increase, then the 

Agency can quickly mandate catch and 

release only fishing. Thus, any 

tournament that occurs, or would have 

occurred, after the 250 fish limit is/was 

achieved, either prior to implementation 

of this action or after, would have to 

operate under an all release scenario. 

This final rule actually benefits 

tournaments because it allows NMFS to 

implement in-season minimum size 

increases, thereby reducing the 

likelihood of exceeding the 250 limit 

and forcing a shift to an all release 

fishery. Further, this final rule includes 

a 14-day delayed effective date, which 

will further allow tournament operators 

and billfish anglers to adjust to any 

possible in-season management actions. 

Comment 10: NMFS received a 

number of comments regarding carry 

over of underharvest and overharvests, 

including: if NMFS intends to 

implement the 250–fish landing limit, 

underages should be added to the next 

year’s limit and fishermen should not be 

penalized if the limit is exceeded; the 

U.S. should mandate that underages be 

carried-over like every other quota; 

codifying the 250–fish limit is not a 

problem, but the proposed regulations 

with respect to overages and underages 

is unacceptable. Rulemakings to deal 

with underages should not be necessary. 

Response: As discussed in the 

response to Comment 3 above, this final 

rule mandates carry-forward of 

overharvest and allows carry-forward of 

underharvest, consistent with ICCAT 

Recommendation 00–14. A failure to 

account for overharvest, as suggested by 

one commenter, would be inconsistent 

with ICCAT Recommendation and 

result in non-compliance by the U.S. 

The U.S. has pledged to its ICCAT 

partners not to carry forward 

underharvest until uncertainty 

surrounding landings of marlin in the 

Commonwealth of Puerto Rico and the 

U.S. Caribbean is reduced. The Agency 

will publish a notice in the Federal 

Register to decrease or increase the 

annual 250 marlin landings limit 

resulting from the carry forward of overor underharvests of Atlantic marlins. A 

rulemaking will be required to increase 

or decrease the 250 marlin recreational 

landing limit resulting from a new 

ICCAT recommendation. 

Comment 11: NMFS received several 

questions, comments, and suggestions 

on billfish monitoring and reporting, 

including: how comprehensive or 

adequate is the monitoring of 

recreational billfish landings?; how 

would the public know when 250 fish 

are landed? Marlin recreational data 

collection methods are not accurate. 

Ninety percent of fish caught now are 

not reported. NMFS should implement 

mandatory logbooks for all permitted 

HMS fisheries, commercial and 

recreational, and require that trip 

reports be submitted because MRFSS 

interviews are not effective; 

enforcement is lacking. That is why 

people do not report their billfish 

landings. NMFS should develop a better 

system to account for marlin landings, 

such as tail tags; and, NMFS is not 

receiving all non-tournament marlin 

landings. There are clubs that land 

marlin and do not report them. NMFS 

should instead require each club to 

report their marlin landings, just like 

tournaments are currently required to 

do. Penalties should be imposed on 

fishing clubs that do not report. 

Response: NMFS has a 

comprehensive system in place to 

record billfish landings that includes 

the Recreational Billfish Survey, the 

Atlantic HMS Non-tournament Billfish 

and Swordfish Reporting system, the 

Large Pelagics Survey (including 

dockside intercepts), and the Marine 

Recreational Fishing Statistics Survey 

(including dockside intercepts), as well 

as cooperative agreements to access 

landings tag/card data from the states of 

North Carolina and Maryland. NMFS is 

always trying to improve its data 

collection systems, and this may 

include future tagging programs, log 

book reporting programs, and 

improvements to the MRFSS, LPS and 

other systems. If the 250 marlin landing 

limit is achieved, NMFS will likely 

notify the public via a number of 

mechanisms, including: publication of a 

notice in the Federal Register, faxing 

notices to interested stakeholders, 

notification of the HMS consulting 

parties, telephone contact with 

recreational constituent leaders, posting 

information on the HMS website, 

placing information on the HMS 

Information telephone line, and working 

with popular sportfishing magazines 

and websites to notify constituents, 

along with other means, as appropriate. 

NMFS encourages the public to 

continue to suggest potential 

improvements. It should be noted 

however, that any reporting system 

relies on the willingness of anglers to 

accurately report. When this does not 

occur, the veracity of the data is 

compromised. NMFS acknowledges that 

recreational Atlantic billfish landings 

data do not account for every billfish 

landed, and thus some level of 

uncertainty surrounds billfish landings 

estimates. NMFS has undertaken efforts 

to improve enforcement of reporting 

requirements, has improved the MRFSS 

and LPS, and has recently received a 

report from the National Research 

Council that may allow for 

improvements to be made to some data 

collection systems. 

Comment 12: NMFS received 

contrasting comments on the proposed 

five-day minimum notification period 

for in-season billfish management 

actions intended to ensure compliance 

with the ICCAT 250 marlin landing 

limit. Comments opposing a minimum 

five-day notification window included; 

we support alternitive E(6), establish the 

250 recreationally caught marlin 

landing limit. However, 21 days would 

be the minimum acceptable notice 

period; if an additional increase in 

minimum size becomes necessary, a 

notice for an inseason adjustment 

should be given at least 30 days in 

advance. This will give tournament 

directors ample time to notify 

participants of a size change; 

tournament directors will need more 

than a few days (about a month) to make 

changes to their regulations, minimum 

sizes, and brochures if the United States 

approaches the 250–fish marlin limit; 


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and, five days is not enough time to 

make changes to the Atlantic billfish 

regulations and to inform the public of 

such changes, as specified in Preferred 

Alternative E6, which would implement 

ICCAT Recommendations regarding 

recreational marlin landings. NMFS will 

probably just shut down tournaments. 

Most HMS tournaments print their 

information packets long before their 

start date. To the extent that in-season 

marlin adjustments can be avoided, they 

should be. Comments supportive of a 

minimum five day notification period 

for in-season management action 

included: A five-day notice should 

provide sufficient time for in-season 

billfish management actions. Bluefin 

tuna has a shorter notice period. 

Especially with the Internet, five days is 

sufficient time for billfish regulatory 

notification for changes in size limits or 

closures. 

Response: NMFS appreciates the 

concerns expressed by tournament 

operators and fishery participants that a 

five-day minimum delay in effective 

date may present difficulties with regard 

to potential rule changes just prior to or 

during a tournament. In selecting a 

period for notification and 

implementation of potential in-season 

regulatory changes to ensure 

compliance with ICCAT recreational 

marlin landings limits, NMFS sought to 

balance the need to act quickly, if 

necessary, while providing an 

appropriate period of time to adequately 

notify the public of any such regulatory 

changes. If too short of a period were 

selected, anglers and tournament 

operators may not have time to become 

aware of the regulatory changes. If too 

lengthy of a period were selected, 

restrictions may be enacted too late to 

ensure compliance with ICCAT 

recommendations or stave off more 

stringent in-season management 

measures. Based on public comment 

requesting additional advance notice, a 

review of the estimated time necessary 

to collect and analyze landings 

information and project the date at 

which regulatory action may become 

necessary, this rule provides a delay in 

the effective date of 14 calendar days for 

in-season billfish management actions, 

inclusive of the date of publication in 

the Federal Register. NMFS has 

determined that providing more than a 

14 calendar day minimum delay in 

effective date would not provide the 

Agency sufficient control over the 

fishery if landings rates were high. 

NMFS believes that this 14 day period 

will still allow the agency to implement 

regulatory changes in a timely manner, 

thus ensuring compliance with ICCAT 

recommendations or staving off more 

stringent in-season management 

measures and will provide anglers and 

tournament operators an improved 

ability to adapt to any potential inseason changes. NMFS also believes that 

there is a substantial misunderstanding 

of this provision. The minimum 14 day 

delay in effective date means that upon 

publication, any in-season action to 

increase the minimum legal size of 

Atlantic marlin or requirement to shift 

the fishery to catch and release only 

cannot become effective in less than 

fourteen days. It does not mean that no 

more than 14 days advanced notice can 

be provided to the public, tournament 

operators, and anglers. The Agency will 

seek to project potential regulatory 

action as far ahead as reasonably 

possible to aid in mitigating any 

potential adverse impacts to the extent 

practicable. 

ii. White Marlin Landing Restrictions 

Comment 13: NMFS received a 

number of comments in support of 

alternative E7, Allow Only Catch and 

Release Fishing for Atlantic White 

Marlin from January 1, 2007 to 

December 31, 2011. Comments in 

support of this alternative included the 

need for NMFS to do all it can to avoid 

having Atlantic white marlin placed on 

the Endangered Species Act (ESA) List 

of Threatened and Endangered Species; 

the need to reduce fishing mortality to 

the greatest extent possible to help 

rebuild overfished populations; 

statements that there is no reason to 

land Atlantic white marlin in 

tournaments because there are 

techniques to verify releases, including 

the use of video and still cameras; it 

makes sense to prohibit all landings, if 

not all directed fishing for white marlin, 

since they are in severe decline; we 

support alternative E7, the Agency has 

the authority to remove the requirement 

earlier than five years if the assessment 

shows that the stock is improving; and, 

there is strong support for prohibiting 

the landing of white marlin in Florida 

and the Gulf. 

Response: The Agency appreciates 

these comments, however, based on 

public comment indicating more 

significant concerns over potential 

adverse economic impacts to the fishery 

if catch and release only fishing for 

Atlantic white marlin were required, as 

well as a number of other factors, 

including but not limited to, the 

impending receipt of a new stock 

assessment for Atlantic white marlin 

and upcoming international 

negotiations on Atlantic marlin, NMFS 

did not select the alternative to prohibit 

landings of Atlantic white marlin at this 

time. The implementation of circle hook 

requirements is an important first step 

in reducing mortality in the directed 

billfish fishery. NMFS may consider 

catch and release only fishing options 

for Atlantic white marlin as well as 

other billfish conservation measures in 

future rulemakings, as necessary and 

appropriate. In regard to the Atlantic 

white marlin ESA listing review, any 

management measures in place at the 

time of the review would be considered 

during deliberations of the listing 

review team. NMFS cannot forecast the 

impacts of any particular management 

action on the outcome of the anticipated 

ESA listing review. 

Comment 14: NMFS received a 

number of comments opposing 

alternative E7, Allow only catch and 

release fishing for Atlantic white marlin 

from January 1, 2007 to December 31, 

2011. Those comments include: 

allowing only catch and release 

recreational fishing for Atlantic white 

marlin would have substantial adverse 

economic impacts on the recreational 

fishing community, including charter 

boat operators, shoreside facilities, and 

entire communities that host white 

marlin tournaments; NMFS 

underestimated the negative economic 

impacts of prohibiting landings of 

Atlantic white marlin; prohibiting 

landings of white marlin would do little 

to improve the population status of the 

species, the landings prohibition is 

unnecessary given the strong 

conservation ethic among U.S. anglers 

and as evidenced by the high release 

rate in the U.S. recreational fishery; the 

entire U.S. recreational fleet landing a 

few white marlin each year has little or 

no impact on billfish stocks; what is the 

rationale for prohibiting recreational 

landings of white marlin given the small 

number of recreational landings and the 

large economic impact generated by 

fishing for white marlin?; and, I do not 

believe in mandatory catch and release. 

It does not work and the public will not 

support it. 

Response: In the Draft Consolidated 

HMS FMP, the Agency preferred a catch 

and release only alternative for Atlantic 

white marlin as well as a circle hook 

requirement for the tournament billfish 

fishery to reduce mortality and 

maximize the associated ecological 

benefits in the directed billfish fishery. 

NMFS received strong public comment 

opposed to the Atlantic white marlin 

catch and release alternative. As 

discussed under the response to 

Comment 13, NMFS is not prohibiting 

landings of Atlantic white marlin at this 

time. However, the Agency believes the 

implementation of the circle hook 

requirement is an important first step in 


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reducing mortality in the directed 

billfish fishery. NMFS appreciates these 

comments and will consider catch and 

release only options as well as other 

billfish conservation measures in future 

rulemakings, as necessary and 

appropriate. 

Comment 15: NMFS received a 

number of comments specifically 

pertaining to the potential impacts of 

alternative E7 (which would allow only 

catch and release fishing for Atlantic 

white marlin from January 1, 2007 to 

December 31, 2011) on tournament 

operations. Those comments include: 

the proposed rule would unfairly affect 

white marlin tournaments along the 

United States mid-Atlantic coast; few 

white marlin are landed in tournaments; 

tournaments are the only cost and 

personnel effective means to 

scientifically sample Atlantic white 

marlin; alternative E7 would change the 

dynamic of fishing tournaments from 

contests where an anglers’ luck or skill 

may prevail (biggest fish) to one where 

only skill would prevail (most fish) and 

would thus decrease participation; 

alternative E7 would create operational 

problems for tournament operators 

pertaining to verification of released 

fish; a fish killed and discarded as 

bycatch in the pelagic longline fishery 

has no direct economic impact. 

However, a fish killed as a tournament 

trophy or through release mortality 

contributes to a multi-million dollar 

industry and benefits the local economy 

and the nation as a whole; if alternative 

E7 is implemented, people will not go 

to tournaments to see the results; my 

concern for tournaments is that people 

like to see the result on the docks. If 

NMFS is going to full catch and release 

for white marlin, I do not believe that 

people will look at tournament videos of 

catches. The social aspect and behavior 

of tournament participants will be 

negatively impacted; there are 

decreasing numbers of tournament 

participants who are participating in the 

White Marlin Open under the catch and 

release category; Maryland has the most 

to lose by prohibiting landings of white 

marlin. Ocean City is the white marlin 

capital of the world. Ocean City should 

not suffer the loss of the White Marlin 

Open; and, alternative E7 is 

unnecessary, will accomplish nothing 

for conservation, and would have a 

significant impact on billfish 

tournaments in the mid-Atlantic areas. 

Response: As stated above in the 

response to Comments 13 and 14 of this 

section, NMFS has not selected the 

catch and release alternative for Atlantic 

white marlin in the Final Consolidated 

HMS FMP. Based on overwhelming 

public concerns for the social and 

economic impacts resulting from a shift 

to catch and release only fishing for 

white marlin, as well as the recognition 

of the limited ecological benefits 

relative to the potentially adverse social 

and economic impacts to billfishermen, 

tournaments, and other shore side 

businesses, as well as other reasons 

discussed under the response to 

Comment 13, the Agency has 

determined that it is premature to 

implement this measure at this time. 

The Agency will, however, consider 

catch and release only options as well 

as other billfish conservation measures 

in future rulemakings, as necessary and 

appropriate. 

Comment 16: NMFS received 

comments requesting that the Agency 

modify alternative E7 to allow for some 

tournament landings of white marlin. 

Those comments include: if the Agency 

cannot go with zero landings, then 

implement a cap for tournaments that 

already have a history of landing white 

marlin. Do not throw out the whole 

proposal; and, if NMFS prohibits 

landings of white marlin, the Agency 

should allow retention of recreationally 

caught white marlin in tournaments or 

when prominent billfish tournaments 

are scheduled. 

Response: NMFS appreciates these 

comments and suggestions to address 

mortality in the directed billfish fishery. 

At this time, the Agency does not 

believe that only allowing Atlantic 

white marlin to be landed in 

tournaments is the most appropriate 

solution, as nearly all Atlantic white 

marlin reported as retained are landed 

in tournaments. The Agency will, 

however, consider catch and release 

only options as well as other billfish 

conservation measures in future 

rulemakings, as necessary and 

appropriate. 

Comment 17: The U.S. only lands less 

than 1 percent of the white marlin, so 

why worry about mortality? 

Response: The U.S. is responsible for 

approximately 4.5 percent of white 

marlin catches in the Atlantic. Fishing 

mortality rates are a concern regardless 

of the size of the U.S. contribution 

because the current fishing mortality 

rate is more than eight times the level 

that the species can sustain. As a 

steward of the fishery, it is appropriate 

for the U.S. to work towards reducing 

and limiting both domestic and 

international fishing mortality rates. The 

U.S. will continue its efforts to reduce 

billfish mortality domestically and 

through ICCAT at the international 

level. 

Comment 18: NMFS received 

comments concerned with fishermen 

shifting target species if white marlin 

landings are prohibited. Those 

comments include: it’s not desirable to 

make all of the fish under the ICCAT 

250 marlin limit be blue marlin, which 

would happen if white marlin landings 

are prohibited; I would not support a 

prohibition on landing white marlin 

because we will kill more white marlin 

converting to targeting blue marlin; and, 

I oppose alternative E7 because fishing 

effort will be redistributed to different 

species. 

Response: As stated in the responses 

to Comments 13 and 14 of this section, 

NMFS is not prohibiting landings of 

Atlantic white marlin at this time. 

NMFS understands the concern over 

potential increases in Atlantic blue 

marlin mortality, given the species’

overfished status. The selected circle 

hook measure and measures to codify 

and ensure compliance with the ICCAT 

marlin landings limit will address 

mortality of both Atlantic blue and 

white marlin in the directed billfish 

fishery. The Agency may consider catch 

and release only options, as well as 

other billfish conservation measures, in 

future rulemakings, as necessary and 

appropriate. 

Comment 19: Tournament spectators 

can still be involved in release 

tournaments if you use large viewing 

screens playing movie clips showing the 

fight and release of marlins. Dead fish 

on the dock do not allow for this type 

of participation. 

Response: NMFS applauds the 

innovative efforts of some tournament 

organizers in working to limit marlin 

mortality. The Agency urges tournament 

organizers to be creative and to work to 

create formats that maximize the social 

and economic benefits from tournament 

operations while minimizing impacts to 

billfish resources. 

Comment 20: NMFS received 

comments recommending that the 

Agency should implement measures to 

further reduce marlin mortality in other 

fisheries. Those comments include: 

NMFS should implement additional 

regulations on the pelagic longline 

fishery, which is responsible for the 

majority of marlin mortality, not impose 

landings restrictions on recreational 

fishermen; alternative E7 places a 

restriction on recreational fishermen 

without addressing the real issue; I am 

opposed to alternative E7 because 

recreational landings are not the 

problem; and, the billfish fishery was 

supposed to be managed for the 

recreational sector and NMFS has failed 

to make any meaningful reductions in 

bycatch captured on longlines issue 

since 1997. 

Response: In recent years, the Agency 

has undertaken multiple rulemakings 


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intended to reduce bycatch and bycatch 

mortality in the pelagic longline fishery. 

Since implementing the 1999 FMP, 

NMFS has closed multiple areas to 

pelagic longline fishing, prohibited the 

use of live bait in the Gulf of Mexico, 

required the use of circle hooks, and 

required the possession and use of 

dehooking devices. The closed areas 

and live bait restriction were 

implemented, in part, to reduce the 

bycatch of billfish in commercial fishing 

operations. Circle hook and release gear 

requirements were implemented to 

reduce sea turtle bycatch and bycatch 

mortality, however, these measures 

likely contribute to reductions in 

billfish release mortality as well. 

Further, as discussed in more detail 

under the response to Comments 1 and 

3, recent data and estimates on postrelease mortality indicate that the 

aggregate domestic recreational billfish 

mortality contribution may be equal to 

or greater than the aggregate domestic 

pelagic longline billfish mortality 

contribution, in some years. 

Comment 21: NMFS received 

comments relating to the ESA listing 

review of white marlin. Those 

comments include: Would a prohibition 

on landings of Atlantic white marlin 

influence the potential listing of 

Atlantic white marlin under the 

Endangered Species Act?; and, selecting 

alternative E7 will not necessarily 

prevent an ESA listing of white marlin. 

Response: The listing review team 

would consider any management 

measures in place at the time of the 

Atlantic white marlin ESA listing 

review. NMFS cannot predict the effect 

of any particular management action on 

the outcome of the anticipated ESA 

listing review. 

Comment 22: The white marlin 

settlement agreement between NMFS 

and Turtle Island Restoration network 

does not preclude further regulation of 

billfish catches under the MagnusonStevens Act, but does require a 

complete reassessment of white marlin 

by the U.S. no later than 2007. 

Response: The Agency intends to 

complete the Atlantic white marlin ESA 

Listing Review on or before December 

31, 2007, as provided in the settlement 

agreement. NMFS has the authority to 

impose additional restrictions on 

fisheries that interact with Atlantic 

white marlin, including the directed 

billfish fishery; however as discussed 

under the response to Comment 13, 

NMFS is not prohibiting landings of 

Atlantic white marlin at this time. The 

implementation of circle hook 

requirements is an important first step 

in reducing billfish mortality in the 

directed billfish fishery. NMFS will 

consider catch and release only options, 

as well as other billfish conservation 

measures, in future rulemakings if they 

are necessary and appropriate. 

Comment 23: NMFS received 

comments inquiring about the Agency’s 

legal authority to prohibit landing of 

white marlin. Those comments include: 

NMFS does not have the legal authority 

to restrict landings of Atlantic marlin to 

levels below ICCAT landings limits; I 

am opposed to alternative E7 because it 

is contrary to giving fishermen a 

reasonable opportunity to catch fish as 

required by ATCA. 

Response: The ICCAT 250 marlin 

landings limit could apply to both 

species combined, or one species alone, 

if landings of the other species were to 

be prohibited domestically. ICCAT 

Recommendation 00–13, and the 

subsequent recommendations that 

modified it, did not include species 

specific landings limits or any 

references to particular landings ratios 

of Atlantic blue and white marlin. The 

ICCAT recommendations simply 

provided an aggregate annual landing 

limit that is not to be exceeded. Thus, 

if the landings of one marlin species 

were prohibited domestically, anglers 

would have 250 of the other marlin 

species available for landing, thereby 

providing a reasonable opportunity for 

anglers to fulfill their ICCAT landing 

limit. 

Comment 24: Why is there a time 

frame associated with alternative E7? 

The target should be MSY. The 

proposed time frame seems political. A 

biological threshold seems more 

appropriate. 

Response: NMFS believed that a fiveyear time frame would have allowed for 

adequate time to gauge the potential 

impacts of such measures on marlin 

stocks and determine, at that point, if 

the measures achieved the objectives of 

the fishery management plan. 

Additionally, NMFS is required to 

consider factors beyond biology in 

making management decisions. 

However, as noted in the response to 

Comment 13, NMFS has not selected 

this alternative in the Final 

Consolidated HMS FMP, but may 

consider landings prohibitions for 

Atlantic marlins and other species in 

future rulemakings, as necessary and 

appropriate. 

Comment 25: Recreational fishermen 

would release all billfish if they thought 

it would do any good. However, it will 

not. The U.S. has always said that its 

catch is an insignificant piece of the 

Atlantic-wide take. The Draft FMP 

throws this concept out the window and 

directs its regulatory muscle at a tiny 

number of recreational billfish landings. 

It is as if NMFS is deciding to make 

them a prohibited species before the 

ICCAT stock assessment or the ESA 

status review. 

Response: NMFS believes that the 

majority of recreational fishermen 

understand the value of catch and 

release fishing for Atlantic billfish as 

supported by the 75 to 99 percent 

release rate in this fishery. NMFS 

believes that catch and release fishing 

significantly reduces the domestic 

mortality contribution to the Atlanticwide stock. The implementation of 

circle hook requirements for this sector 

of the fishery is expected to significantly 

reduce post release mortality. The 

Agency recognizes that other ICCAT 

nations kill significantly more billfish 

than the U.S. In comparison to other 

nations, the U.S. landings and dead 

discards represent approximately 2.4 

and 4.5 percent of total Atlantic 

landings of Atlantic blue and white 

marlin, respectively. Recent information 

suggests that the U.S. mortality 

contribution for Atlantic billfish may be 

significantly higher than previous 

estimates, given new studies on 

recreational post-release mortality. This 

rulemaking seeks to minimize this 

mortality. 

Comment 26: The entire U.S. 

recreational fleet and charter/headboats 

are landing very few white marlin each 

year, approximately 227 total fish over 

the last three years. These landings have 

little or no impact on the stock, but 

generate tremendous social and 

economic benefits for coastal 

communities particularly where 

tournaments are held. 

Response: NMFS acknowledges the 

significant social and economic benefits 

that the recreational billfish fishery 

provides to coastal communities. 

Additionally, NMFS acknowledges the 

limited conservation benefit that could 

be realized from a prohibition on the 

landings of Atlantic white marlin. This 

measure was preferred in the Draft 

Consolidated HMS FMP in addition to 

a circle hook requirement for 

tournament billfish fishermen. The 

Agency preferred these alternatives 

together in an attempt to maximize 

reductions in total Atlantic white marlin 

mortality resulting from the directed 

billfish fishery. However, as noted in 

the response to Comment 13, NMFS did 

not select this alternative in the Final 

Consolidated HMS FMP, but may 

consider landings prohibitions for 

Atlantic marlins and other species in 

future rulemakings, as necessary and 

appropriate. The Agency has selected a 

non-offset circle hook requirement for 

HMS permitted vessels participating in 

billfish tournaments. This measure is 


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anticipated to substantially reduce 

mortality without the potential adverse 

economic impacts associated with a 

prohibition on white marlin landings. 

Comment 27: NMFS received 

comments in support of alternative E8, 

which would allow only catch and 

release recreational fishing for Atlantic 

blue marlin. Additionally, one 

commenter added that alternative E8 

may be needed if overfishing cannot be 

addressed. 

Response: This alternative was 

analyzed but not preferred in the Draft 

Consolidated HMS FMP or Final 

Consolidated HMS FMP due, in part, to 

potentially severe negative social and 

economic impacts, and for other 

reasons. The U.S. will continue its 

efforts to reduce billfish mortality both 

domestically and at the international 

level. Additionally, the Agency may 

consider catch and release only options 

for Atlantic blue marlin as well as other 

billfish conservation measures in future 

rulemakings, as necessary and 

appropriate. 

Comment 28: NMFS received 

comments opposed to alternative E8, 

which would allow only catch and 

release fishing for Atlantic blue marlin 

from January 1, 2007 to December 31, 

2011. Those comments include: we are 

vehemently opposed to alternative E(8), 

catch and release only for blue marlin. 

This is not a conservation issue, this is 

a socio-economic issue and to 

implement alternative E8 would be 

economic suicide; and, this alternative 

exceeds the ICCAT Recommendations 

for this species. NMFS should focus on 

compliance with ICCAT’s 

recommendations. The U.S. directed 

billfish fishery should be allowed to 

harvest its allocated quota. 

Response: The Agency did not select 

this alternative in the Draft 

Consolidated HMS FMP, however, it 

remains a valid management tool 

available to NMFS if warranted by stock 

status or other factors. NMFS selected 

an alternative that will fully implement 

U.S. international obligations contained 

in ICCAT Recommendation 00–13 and 

subsequent amendments. Additionally, 

the Agency has selected other domestic 

measures in the Final Consolidated 

HMS FMP to reduce post-release 

mortality of billfish stocks. 

Comment 29: By itself, alternative E8, 

which would allow only catch and 

release fishing for Atlantic blue marlin 

from January 1, 2007 to December 31, 

2011, will not substantially reduce blue 

marlin fishing mortality unless 100 

percent circle hook use, careful 

handling/release tools, procedures, and 

training are also required. Even then, 

unless such responsible actions are 

taken by foreign fisheries, especially in 

the directed fisheries, reducing the U.S. 

blue marlin fishing mortality is unlikely 

to have substantial conservation gains. 

Response: NMFS agrees that 

improved handling and release skills 

may reduce domestic post-release 

mortality of billfish, and that it is 

critical for foreign fishing nations to 

reduce total Atlantic billfish mortality to 

improve the stock status of these 

species. NMFS did not consider the 

other measures suggested in Comment 

29, such as careful handling and release 

tools, and thus, they are beyond the 

scope of this rulemaking. NMFS may 

consider these measures in a future 

rulemaking, if necessary and 

appropriate. NMFS also agrees that 

international cooperation is essential to 

rebuilding Atlantic billfish populations 

and, as such, will continue to pursue 

international billfish conservation 

through ICCAT. 

Comment 30: NMFS should not 

impose any new restrictions on HMS 

tournaments until after 2006. 

Response: To provide Atlantic billfish 

tournament operators and participants 

time to acclimate to new regulations 

requiring the use of non-offset circle 

hooks when natural baits and or natural 

bait/artificial lure combinations are 

deployed from HMS permitted vessels 

that are participating in billfish 

tournaments, NMFS has selected 

January 1, 2007, as the effective date for 

these requirements. Barring unforeseen 

circumstances, no new restrictions will 

be imposed on HMS tournaments 

during 2006. 

Comment 31: NMFS should consider 

a limited entry system for tournaments 

with a specific white marlin quota. 

Tournaments should be issued a permit 

and a quota for white marlin kills. 

Outside of tournaments, recreational 

vessel owners should be required to 

have a permit and to abide by a catchand-release only policy. This would 

allow for the continuation of HMS 

tournaments, which provide the largest 

economic benefits. It would also 

facilitate more accurate counting of 

marlin, and provide some fish for 

biologists to conduct scientific research. 

Response: NMFS appreciates the 

suggestions submitted to the Agency 

regarding potential additional 

tournament regulations and other 

management suggestions for the 

directed billfish fishery, and asks 

commenters to continue to submit 

innovative ideas to improve billfish 

management. As discussed above, 

ICCAT has conducted a marlin stock 

assessment and may reconsider 

management measures for billfish at its 

annual meeting in November 2007. If 

this occurs, NMFS could consider 

comments such as these in future 

rulemakings, as necessary and 

appropriate. 

Comment 32: How many Atlantic 

white marlin are brought to the dock in 

tournaments each year? 

Response: Between 1999 and 2004, 

inclusive, a total of 144 Atlantic white 

marlin were reported to the Recreational 

Billfish Survey as landed in 

tournaments. According to RBS data, 

landings of Atlantic white marlin in 

tournaments ranged from a low of eight 

in 2000, to a high of 36 in 1999, and 

averaged 24 annually for the six year 

period under discussion. 

Comment 33: All fishing tournament 

participants should be required to use 

circle hooks, not just billfish 

tournament participants. 

Response: NMFS believes that the 

current severely overfished stock status 

of Atlantic blue and white marlin and 

the proven ability of circle hooks to 

reduce post-release mortality support 

the selected alternative to require use of 

non-offset circle hooks in billfish 

tournaments. However, NMFS believes 

that more data on the impacts of circle 

hooks on non-billfish species and other 

fisheries should be collected and 

analyzed prior to proposing additional 

hook and bait requirements for all HMS 

tournaments. NMFS may consider 

additional hook and bait requirements 

for other segments of the HMS 

recreational fisheries in future 

rulemakings, as appropriate. 

Comment 34: I spend $3,000.00 a year 

on the White Marlin Tournament in 

Ocean City, Maryland. There are five 

fishermen on the boat pumping $15,000 

into the Ocean City, Maryland, economy 

on our boat alone. I do not want this 

tournament to end. 

Response: NMFS is interested in 

seeing a healthy HMS tournament 

industry continue operations and 

continue to provide benefits to the 

nation. The final management measures 

regarding Atlantic billfish, 

implementation of non-offset circle 

hook requirements under certain 

conditions in billfish tournaments, and 

the ICCAT recreational marlin 

management measures, have been 

crafted in a way to minimize and 

mitigate potential adverse socioeconomic impacts and are not expected 

to have significant impacts on billfish 

tournaments. Please refer to Chapter 4 of 

the Final Consolidated HMS FMP for 

additional detail regarding the estimated 

impacts of the selected alternatives. 

Comment 35: NMFS received several 

comments, including one from the Gulf 

of Mexico Fishery Management Council, 

in favor of increasing the minimum size 


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limits for white and/or blue marlin, 

including: even a limited benefit is 

worth implementing; people interested 

in a smaller size limit are trying to make 

loopholes so they can catch and keep 

smaller fish; NMFS should increase the 

size limit of blue marlin because the 

Puerto Rico Game fish association has 

only taken 15 marlin all year in 

tournaments; increasing the size by 

approximately 40 percent, we would not 

have to apply the 250 fish cap; I support 

E4(b), increasing the minimum size of 

blue marlin because length and weight 

are correlated for blue marlin; increase 

the minimum size for blue marlin to 105 

inches LJFL because most tournaments 

have a minimum weight of 400 pounds; 

increasing the minimum size for blue 

marlin would reduce the number of 

legal fish landed by one third; there 

should be at least a 106 inch minimum 

size limit to allow them to live for three 

more years and at least two years of 

spawning; and, I support a minimum 

size of 104 inches for blue marlin. 

Response: The Agency is not 

increasing minimum sizes of Atlantic 

blue or white marlin at this time for 

several reasons. Only limited 

conservation benefits might be attained 

by increasing the minimum sizes for 

marlin because relatively few blue and 

white marlin are landed on an annual 

basis. In 2004, 118 blue marlin and 18 

white marlin were reported to ICCAT, 

comprised mainly of tournament 

landings, but also including North 

Carolina and Maryland catch card 

landings, and non-tournament landings 

reported to HMS. Since the majority of 

landings occur in tournaments and 

many tournaments already have a 

minimum size greater than the current 

minimum size, increasing the minimum 

size may not have any significant 

ecological benefits. The Agency has also 

received information that white marlin 

might not display a consistent lengthweight relationship, meaning that very 

few of these fish would even attain the 

minimum size if it were increased. 

The United States is currently well 

below the 250 fish limit imposed by 

ICCAT and, therefore, does not need to 

reduce landings to comply with 

international obligations at this time. 

Lastly, other management measures 

selected in this action (mandatory use of 

circle hooks when using natural bait by 

HMS permit holders in tournaments 

that have a billfish prize category and 

implementation of ICCAT 

recommendations that establish an inseason adjustment framework to 

increase minimum sizes or catch and 

release, if necessary) should result in 

the desired conservation benefits by 

reducing landings if the ICCAT landings 

limit is approached in the future and 

reducing post release mortality of 

billfish caught in tournaments. The 

Agency may consider permanent 

modifications to the minimum size in 

the future as necessary to ensure 

compliance with international 

obligations and facilitate rebuilding of 

blue and white marlin stocks. 

Comment 36: NMFS received 

numerous comments opposing the 

implementation of a minimum size for 

white and/or blue marlin as described 

in Alternative E4 (a), increase the 

minimum legal size for Atlantic white 

marlin to a specific size between 68 - 71 

inches LJFL and Alternative E4 (b), 

increase the minimum size of blue 

marlin to a specific size between 103 - 

106 inches LJFL, including: many 

tournaments already have a larger 

minimum size than what NMFS has 

implemented (i.e., 110 inches or 400 lb), 

therefore, no benefits will be realized 

from increasing minimum sizes; NMFS 

had already established minimum size 

limits for white and blue marlin and 

these limits should not be increased; 

because of the differences in growth 

patterns between white and blue marlin, 

an increased size limit for white marlin 

would be ineffective because these fish 

grow to size and then put on additional 

weight and not necessarily length; for 

white marlin weight and length are not 

closely correlated for fish above 62 

inches LJFL; there is no rationale for 

increasing minimum sizes, because 

requiring circle hooks will accomplish 

the same thing; and, why implement 

increased size limits to avoid reaching 

the 250 mark, when the existing 

regulations seem to work? 

Response: NMFS did not select an 

increased minimum size for white or 

blue marlin at this time, however, 

NMFS may consider modifications to 

minimum sizes in the future, as 

necessary. NMFS is unaware of the 

exact number of billfish tournaments 

that currently require a minimum size 

greater than the current Federal 

regulations, however, they are 

numerous. Since this is where the 

majority of reported landings occur, 

increasing the minimum size may not 

result in significant positive ecological 

benefits. In 2004, all but 3 of the 149 

billfish reported to ICCAT were landed 

in tournaments. The United States has 

been well under its ICCAT allocated 

quota of 250 billfish/year every year 

(except 2002), and the measures in this 

final rule would increase the minimum 

size for Atlantic white and blue marlin 

if there were a possibility of 

approaching the landings limit in the 

future, thereby mitigating the need to 

permanently increase minimum sizes to 

comply with the ICCAT landings limit. 

NMFS also is mandating the use of nonoffset circle hooks in billfish 

tournaments by HMS anglers when 

deploying natural baits to reduce post 

hooking mortality of released fish. 

Furthermore, because the majority of 

billfish are caught and released and 

catch rates are low (1.03 and 1.13 white 

and blue marlin per 100 hours angling, 

respectively), conservation benefits of 

increasing the minimum size may be 

minimal. 

Comment 37: NMFS received 

comments both opposing and 

supporting alternatives E4(a) and E4(b) 

on the basis that a larger size limit 

would result in fishermen targeting 

larger, more fecund females and that 

NMFS should consider a slot limit to 

protect these larger, more fecund, 

marlin. 

Response: Generally speaking, the 

likelihood of landing a more fecund 

female may increase if NMFS 

implemented a larger minimum legal 

size for blue marlin. For white marlin, 

the correlation between length and age 

or fecundity is less certain as current 

information indicate that white marlin 

may first put on length, and then 

weight. The fishery is generally 

opportunistic in nature, with a low 

CPUE, and with little ability for 

fishermen to ‘‘target’’ a large or small 

billfish. Further, the recreational billfish 

fishery is an overwhelmingly catch and 

release fishery. As such, while a larger 

legal minimum size may result in larger 

fish being landed, it is unlikely that 

anglers could successfully ‘‘target’’

larger billfish. NMFS appreciates the 

suggestion of analyzing a slot limit, and 

encourages anglers to continue to 

submit suggestions to the Agency. As 

discussed in the response to comment 

35 above, NMFS did not select an 

alternative to change the minimum size 

but may reconsider minimum size 

changes, including slot limits, in the 

future. 

Comment 38: NMFS received a 

comment asking what data were used to 

determine the billfish size limits. 

Response: Size distributions from 

Atlantic billfish tournaments held from 

1995–1997 were used to analyze 

minimum size alternatives contained in 

Amendment 1 to the Billfish FMP 

(1999), which resulted in the current 

minimum legal sizes for Atlantic 

billfish. Minimum size ranges analyzed 

for this rulemaking were based on RBS 

landings of white and blue marlin in 

tournaments between 1999–2004. 

Comment 39: NMFS received several 

comments in support of Alternative E5 

(bag limit of one billfish/vessel/day), 

including: the United States is already 


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under such a limited quota for white 

and blue marlin (250 fish/year 

combined for both species) that a bag 

limit is necessary; a bag limit might 

result in some high grading, but it 

should not be much of a problem; and, 

if the United States recreational sector is 

limited to 250 blue marlin and white 

marlin, it is inappropriate to let one boat 

come back with more than a single fish 

on any given day. 

Response: NMFS recognizes the 

concerns of anglers regarding allocation 

of fish, particularly given the strict 

marlin landings limits placed upon the 

United States. As discussed in Chapter 

4 of the Final Consolidated HMS FMP, 

the United States is limited to 250 white 

and blue marlin, combined, on an 

annual basis, per ICCAT 

Recommendation 00–13. Since 2001, 

the United States has only exceeded its 

annual 250 fish limit one time (2002), 

and that was because of a modification 

to the accounting methodology for 

compliance with ICCAT. NMFS has 

selected the alternative to implement 

ICCAT Recommendation 00–13 in the 

Final Consolidated HMS FMP. At this 

time, there is little evidence suggesting 

that individual anglers are landing 

excessive numbers of marlin and 

potentially depriving other anglers of 

the opportunity to land a marlin. No 

multiple marlin trips have been 

reported to the Atlantic billfish and 

swordfish non-tournament landings 

system. However, NMFS may consider 

implementation of a bag limit in the 

future as necessary and appropriate. 

Comment 40: NMFS received several 

comments objecting to alternative E5 

(bag limit of one billfish/vessel/trip) for 

varied reasons, including: it would 

encourage the culling of fish; landing a 

few fish is not the issue; and, a bag limit 

will not reduce post-release mortality of 

billfish unless careful handling and 

release guidelines are followed. 

Response: As discussed in the 

response to Comment 39, there is little 

evidence, at this time, that individual 

anglers are landing excessive numbers 

of marlin on individual trips and 

potentially depriving other anglers of 

the opportunity to land an Atlantic 

marlin. Further, as described in the 

response to Comment 39, overall 

landings of Atlantic marlin by U.S. 

recreational fishermen are low and well 

below the U.S. marlin landing limit. 

This is due, in large part, to the anglers 

who choose not to land marlin that are 

legally available for landing. NMFS is 

always concerned about the potential 

for increases in culling and discards 

which may result from regulation. 

NMFS acknowledges the limited 

conservation benefit that a bag limit 

may produce and agrees that a bag limit 

alone would not reduce post-release 

mortality. NMFS selected a circle hook 

alternative in the Final Consolidated 

HMS FMP that is expected to reduce 

post-release mortality of Atlantic 

billfish. 

iii. Gears and Gear Restrictions 

Comment 41: NMFS received 

comments in support of non-preferred 

alternative E2, which would require the 

use of circle hooks in all HMS 

recreational fisheries when using 

natural bait, including: only a fraction of 

the offshore recreational effort occurs in 

tournaments so the conservation 

benefits would be larger if circle hooks 

were required in all offshore fisheries. 

This alternative would facilitate 

enforcement by requiring that all HMS 

fishermen use circle hooks; NMFS 

should require circle hooks, careful 

handling/release tools and training for 

all HMS hook and line fisheries that 

interact with white marlin. This may be 

the only way for NMFS to prevent an 

ESA listing for white marlin. It cannot 

be ignored that the directed recreational 

fishery is likely the majority of domestic 

white marlin mortality, which is a 

minute percent. Unfortunately, even 

such a sacrifice may not be successful, 

unless adopted by other foreign 

fisheries, especially directed fisheries 

that interact with white marlin. Circle 

hooks are needed for all HMS fisheries, 

not just in tournaments. If an HMS 

fishery interacts with billfish, then it 

needs to use circle hooks. 

Response: NMFS agrees that Atlantic 

billfish tournaments represent a subset 

of total fishing effort targeting Atlantic 

billfish and that there would be a greater 

conservation gain if circle hooks were 

required in all offshore recreational 

fisheries. NMFS is interested in all 

potential means of further reducing the 

post-release mortality of all HMS. 

However, NMFS prefers to collect and 

evaluate additional data regarding the 

impacts of circle hooks on non-billfish 

species and fisheries prior to mandating 

circle hooks for all HMS fisheries. Other 

possible methods of reducing postrelease mortality of all HMS could 

include the required use of careful 

handling and release guidelines, release 

equipment, and training. NMFS may 

consider the feasibility of additional 

circle hook requirements and other 

requirements in the future, as suggested 

by the commenter. NMFS also agrees 

that uniform fishery-wide circle hook 

requirements will likely facilitate 

enforcement. However, NMFS believes 

that the requirement to use circle hooks 

by permitted HMS fishermen when 

natural bait and natural bait/artificial 

lures are deployed in billfish 

tournaments can be adequately enforced 

by NMFS Office of Law Enforcement. 

NMFS further believes that, given the 

vested financial interests of billfish 

tournament participants in ensuring that 

all tournament participants compete 

under the same rules and conditions, 

tournament circle hook requirements 

will be significantly self-enforced. The 

Atlantic White Marlin ESA Listing 

Review Panel would take into 

consideration the impacts of all 

regulations in effect, including circle 

hook requirements, when making its 

recommendations. NMFS cannot predict 

the outcome of these deliberations or 

the direct impact that any particular 

regulation may have on the outcome of 

such deliberations. Data indicate that 

the domestic directed fishery for 

Atlantic white marlin is responsible for 

a significant proportion of total 

domestic white marlin mortality, and 

may, in some years, exceed the level of 

mortality inflicted by the domestic 

pelagic longline fleet. NMFS also agrees 

that the directed domestic fishery for 

Atlantic white marlin and the bycatch of 

this species in other domestic fisheries 

represents only a small portion of total 

Atlantic-wide mortality, on both an 

individual and a collective basis. NMFS 

also agrees that the recovery of this 

depleted fishery is dependant upon the 

cooperation of the international 

community. To this end, the U.S. 

continues to pursue marlin conservation 

at the international level through 

ICCAT. 

Comment 42: NMFS received 

conditional support for alternative E2, 

Effective January 1, 2007, limit all 

participants in Atlantic HMS 

recreational fisheries to using only nonoffset circle hooks when using natural 

baits or natural bait/artificial lure 

combinations, including; I support the 

use of circle hooks with natural baits in 

all HMS fisheries, only if no J-hooks are 

allowed on board the vessel. 

Response: Public comment during the 

scoping phase of this rulemaking was 

nearly unanimous on the need to allow 

the use of J-hooks with artificial lures 

when fishing for Atlantic blue marlin 

given the feeding behaviors of this 

species. Additionally, in its analysis of 

circle hook requirements, NMFS found 

that the post-release mortality rate of 

Atlantic blue marlin caught 

recreationally on J-hooks appeared to be 

comparable to post-release mortality 

rates of Atlantic white marlin caught 

recreationally on circle hooks. As such, 

this rule, which requires the use of nonoffset circle hooks by permitted HMS 

fishermen when natural bait or natural 

bait/artificial lures are deployed in 


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billfish tournaments, but allows J-hooks 

to be used with artificial lures, will 

likely reduce mortality in the directed 

billfish fishery and provide a significant 

and appropriate conservation benefit. 

Comment 43: NMFS received 

comments opposing Alternative E2, 

including: I do not support alternative 

E2; I am concerned about requiring 

circle hooks in all HMS fisheries 

because dolphin, wahoo, king mackerel, 

and inshore fisheries could be impacted; 

how would NMFS determine who is in 

the HMS fishery?; I strongly oppose 

requiring the use of circle hooks in all 

HMS fisheries because circle hooks do 

not work on swordfish and the catch 

rate goes down; and there may be a 

problem in terms of enforcement with 

making circle hooks mandatory in all 

HMS fisheries (alternative E2), but it 

could work in Atlantic billfish 

tournaments (preferred alternative E3). 

Response: NMFS acknowledges that 

requiring circle hooks in all HMS 

fisheries could affect secondary 

fisheries, including dolphin, wahoo, 

king mackerel, and other inshore 

fisheries. As previously acknowledged, 

NMFS prefers to collect additional data 

on the impacts of fishery-wide circle 

hook requirements. Such data collection 

would include HMS fisheries and may 

also include some non-HMS species and 

fisheries. The NED circle hook study 

indicated that deployment of circle 

hooks in the commercial pelagic 

longline fishery can result in a decrease 

in the number of swordfish caught 

under some oceanographic conditions. 

However, NMFS has only limited data 

on the impact of circle hooks in the 

recreational swordfish fishery. With 

regard to enforcement, NMFS believes 

that given the vested financial interests 

of billfish tournament participants in 

ensuring that all tournament 

participants compete under the same 

rules and conditions, tournament circle 

hook requirements will be significantly 

self-enforced. 

Comment 44: NMFS received 

comments on the adequacy of data and 

assumptions made in support of nonpreferred alternative E2, which would 

require all HMS fishermen to use circle 

hooks when using natural bait and 

preferred alternative E3, which would 

require the use of non-offset circle 

hooks in billfish tournaments when 

using natural bait, including: NMFS 

cannot justify alternatives E2 or 

alternative E3. We do not believe that 

there is data to support the preferred 

alternative to require circle hooks in 

tournaments; and, the assumptions 

made to support the use of circle hooks 

are not specified in the text and leads 

one to believe that there is another set 

of assumptions that would not support 

the use of circle hooks. Where the ‘‘23 

percent overall’’ figure comes from is 

not discoverable in the text. It is one of 

those derived from assumptions that are 

not spelled out. The ‘‘65.7 percent’’

figure is right from the Horodysky and 

Graves study which, as argued, is 

insufficient to support any of the 

proposals. 

Response: The significant potential 

reductions in post-release mortality of 

recreationally caught Atlantic billfish 

that are anticipated to be achieved 

through the shift from J-hooks to nonoffset circle hooks in the directed 

fishery provide ample support for 

implementing these measures. Reducing 

the post-release mortality of Atlantic 

white marlin by two-thirds would be a 

landmark achievement. The shift to 

circle hooks in the directed Atlantic 

billfish fishery is the most effective 

single management tool known to the 

Agency at this time to control postrelease mortality, and has the added 

benefit of having minimal impacts on 

the fishery. NMFS has relied on 

publicly available peer-reviewed 

scientific papers and available 

recreational data sets in developing its 

analyses. The assumptions made to 

support the use of circle hooks are 

articulated in Chapter 4 of the Final 

Consolidated HMS FMP. The reference 

to 23 percent overall reduction 

represents another statistical 

perspective on the anticipated 

reduction. It represents the change in 

absolute terms of reducing the estimated 

post-release mortality of Atlantic white 

marlin from 35 percent overall on Jhooks to approximately 12 percent 

overall on circle hooks (35 percent ¥ 12 

percent = 23 percent). The 65.7 percent 

figure represents the relative decrease in 

post-release mortality between J-hook 

and circle hook caught Atlantic white 

marlin (23 percent/35 percent = 65.7 

percent). 

Comment 45: NMFS received a 

number of comments opposing 

preferred alternative E3, which would 

require the use of non-offset circle 

hooks by HMS permitted fishermen 

participating in billfish tournaments 

when using natural baits, including: we 

support the voluntary use of circle 

hooks and oppose mandating use of 

circle hooks in tournaments when using 

natural baits; if NMFS lets the 

recreational and charter/headboat fleet 

implement circle hooks on a voluntary 

basis, there will be 90 percent or better 

compliance at using circle hooks in a 

year or two; all south Florida 

tournaments have already voluntarily 

converted to circle hooks because they 

work, NMFS should ask tournament 

directors to add 5 extra points to anglers 

who used circle hooks to catch their 

fish; the number of fish saved will be 

ten times greater with the voluntary use 

of circle hooks rather than mandatory 

use, because the public does not like to 

be forced into doing things; individual 

tournaments should be allowed to 

determine which type of hook is most 

appropriate for their own needs; we 

agree with NMFS that promoting circle 

hook use in tournaments will result in 

non-tournament anglers using them 

also, however it should not be required 

by regulation. Anglers will ignore the 

circle hook requirement at tournaments 

and will choose the best tackle to win. 

The blue marlin fishery is a mixed 

fishery and circle hooks do not work 

well on other tournament species such 

as wahoo; enforcing circle hook 

requirements will be difficult or 

impossible, especially at tournaments; 

circle hooks need to be phased in 

through angler education, because they 

are not enforceable at this time with no 

proposed specifications; NMFS should 

educate anglers on the use and benefits 

of circle hooks. NMFS needs to provide 

specifications on circle hooks (offset, 

circularity, shank length, size, gap, etc.) 

before requiring them; I do not want 

NMFS to advocate one hook 

manufacturer over another; NMFS needs 

written specifications that are clear to 

everyone in order to encourage 

compliance; circle hooks could 

potentially have huge negative 

economic impacts on tournaments. 

They may decrease anglers’ ability to 

catch non-billfish species that are 

landed for food or tournament winnings 

and as such may decrease willingness to 

participate in tournaments. This 

commenter also noted that the transition 

to circle hooks may require anglers to 

invest between $15,000 and $20,000 in 

the way they fish tournaments; potential 

adverse economic impacts of 

implementing circle hooks may 

outweigh the conservation benefits 

derived from anticipated decreases in 

post-release mortality and as such other 

areas of conservation should be 

explored; anglers need to use J-hooks 

with artificial lures because of the way 

marlin feed; circle hooks do not work 

well for species that are trolled for at 

higher speeds; fish do not get gut 

hooked with J-hooks and artificial bait. 

Anglers need natural bait with circle 

hooks because the use of circle hooks 

for marlin fishing with lures will not 

work. Marlins smack the live bait with 

circle hooks and will get hooked in the 

mouth or bill so there is very little 

chance of gut hooking anything; the best 

way to catch them (blue marlin) is to 


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slow troll natural bait with no drop 

back. Circle hooks may not work 

without a drop back; and, I oppose 

Alternative E3 because it falls short of 

what is needed. 

Response: NMFS disagrees that there 

will be significantly greater use of circle 

hooks by anglers in the Atlantic billfish 

fishery if circle hook use remains 

voluntary, as opposed to being required 

under certain circumstances. Circle 

hook use has always been voluntary, 

and yet significant portions of the 

fishery continue to use J-hooks. Further, 

NMFS has been actively encouraging 

the use of circle hooks in HMS Fisheries 

since 1999. NMFS advocated circle 

hook use through the placement of 

articles on circle hooks, held 

discussions with industry leaders to 

encourage their use and to educate 

anglers on their benefits, recommended 

their use during public hearings and 

elsewhere, and encouraged circle hook 

use in tournaments by providing 

monetary incentives to anglers for their 

use. While there has been some progress 

in sectors of the fishery, anecdotal 

evidence suggests that substantial 

portions of the fishery continue using Jhooks as the standard hook. For several 

reasons, NMFS has selected the 

alternative to require non-offset circle 

hooks to be used by anglers aboard HMS 

permitted vessels participating in 

billfish tournaments when deploying 

natural baits. There are substantial 

conservation benefits associated with 

the use of circle hooks, primarily 

reduced post-hooking mortality. This is 

especially important because recent 

information suggests that the postrelease mortality rate of Atlantic white 

marlin caught recreationally on J-hooks 

is substantially higher than previous 

estimates. In addition, there are data 

indicating that the mortality 

contribution of the recreational 

community on Atlantic white marlin 

may equal or exceed that of the pelagic 

longline fishery in some years, and 

circle hook requirements are already in 

place for that fishery. 

As discussed in the response to 

Comment 41 regarding enforcement of 

circle hook use in tournaments, NMFS 

believes that given the vested financial 

interests of billfish tournament 

participants in ensuring that all 

tournament participants compete fairly 

under the same rules and conditions, 

tournament circle hook requirements 

would be significantly self-enforced. A 

general definition of ‘‘circle hook’’ is 

included in the current Federal 

regulations governing Atlantic HMS, 

and NMFS understands the desire of 

tournament operators for additional 

circle hook specifications. However, as 

there are no standard industry hook 

specifications, NMFS cannot provide 

detailed hook specifications for each 

size circle hook that could be used in 

the recreational billfish fishery at this 

time. NMFS is continuing to work on 

various definitions of circle hooks that 

could be applied in future rulemakings. 

Further, to ease concerns of anglers and 

simplify hook choice, NMFS is 

considering working with hook 

manufacturers to ensure that all hooks 

marketed as circle hooks are true circle 

hooks. NMFS disagrees that 

implementation of circle hook 

requirements will cause large adverse 

economic impacts. NMFS has not seen 

evidence that participation in the 

fishery will decrease as a result of circle 

hook use. Circle hooks have been shown 

to increase catch rates of some billfish 

and are, on average, slightly less 

expensive than J-hooks. Many 

commenters suggested that if circle 

hook use were left voluntary that 

compliance rates will be very high. 

NMFS agrees that circle hooks may 

affect the catches of some non-HMS 

species, but cannot predict whether 

these catches may increase or decrease. 

However, circle hooks will only be 

required on HMS permitted vessels 

participating in billfish tournaments 

when natural baits or natural bait/ 

artificial lure combinations are 

deployed. Based on public comment 

during scoping and an examination of 

post-release mortality data of blue 

marlin caught on J-hooks, NMFS will 

allow anglers on HMS permitted vessels 

in billfish tournaments to continue to 

use J-hooks with artificial lures. NMFS 

remains convinced that implementing 

non-offset circle hook requirements in 

Atlantic billfish tournaments when 

natural baits or natural bait/artificial 

lures are deployed from permitted HMS 

vessels will be an important and 

productive first step that should reduce 

mortality in the U.S. directed billfish 

fishery. 

Comment 46: I am concerned that 

alternative E3 specifies circle hooks for 

‘‘all Atlantic billfish tournament 

participants’’ rather than ‘‘HMSpermitted vessels in all Atlantic billfish 

tournaments.’’

Response: NMFS agrees. NMFS has 

made a technical clarification to the 

wording of the alternative to correct any 

misperceptions. NMFS did not intend 

that the regulations contained in 50 CFR 

part 635 would apply to fisheries under 

the jurisdiction of the regional fishery 

management councils. NMFS analyzed 

this alternative from the perspective of 

applying circle hook requirements only 

to HMS-permitted vessels. To clarify, 

NMFS will require circle hook use only 

by anglers fishing from Atlantic HMS 

permitted vessels participating in 

Atlantic billfish tournaments when 

deploying natural bait or natural bait/ 

artificial lure combinations. 

Comment 47: NMFS received a 

number of comments in support of 

preferred alternative E3, Effective 

January 1, 2007, limit all Atlantic 

billfish tournament participants to using 

only non-offset circle hooks when using 

natural or natural bait/artificial lure 

combinations, including: I support 

alternative E3, which would require 

circle hooks in Atlantic billfish 

tournaments; the results of recent circle 

hook studies are very compelling; 

NMFS should make a tough decision 

and implement circle hooks because 

they work; circle hooks can help with 

catch and release by reducing postrelease mortality; NMFS must reduce 

mortality on marlin and should require 

circle hooks; limiting tournaments to 

circle hooks should reduce post-release 

mortality and provide additional 

conservation to billfish in the 

recreational fishery. Mandatory use is 

viable in the tournament setting. 

Outside of tournaments, NMFS needs an 

aggressive education program to 

promote the use of circle hooks; it is 

easy to get a circle hook back, and circle 

hooks have the benefit of not leaving 

any gear on the fish; circle hooks work, 

save fish, and result in less hooking 

trauma; I support the use of circle 

hooks, but they may not work with 

combination baits; our club adopted the 

use of circle hooks exclusively for all 

our tournaments, and we generally have 

a short ten to 15 minute release time on 

sailfish and white marlin, which 

minimizes stress on the animal; we 

support alternative E3, non-offset circle 

hooks with dead or live natural baits in 

tournaments, but a circle hook needs to 

be clearly defined; circle hooks should 

be mandatory for billfish tournaments; I 

support the mandatory use of circle 

hooks in billfish tournaments because it 

is enforceable. Tournament directors 

can give out hooks or inspect them; 

Tournaments are a good place to start 

implementing circle hooks; there is an 

international movement to use circle 

hooks; the U.S. needs to put circle hook 

requirements on paper to show ICCAT 

our commitment and credibility, rather 

than doing this voluntarily; the 

international focus needs to be on 

improving the post-release mortality of 

Atlantic billfish and requiring circle 

hooks in U.S. fisheries will help with 

this effort; and, the recreational sector 

claims they are not ready for circle 

hooks, but the commercial sector was 

forced to move to circle hooks. 


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Anything that can be done to reduce 

mortality is good. The commercial 

fishing sector has stepped up to the 

plate, so the recreational community 

should do the same. 

Response: NMFS agrees with 

comments suggesting that implementing 

circle hook requirements in 

tournaments will reduce post-release 

mortality of billfish caught in 

tournaments, and should help reduce 

the overall fishing mortality rate of 

Atlantic marlins. Recent data indicate 

that switching to circle hooks could 

reduce post-release mortality rates for 

individual fish by approximately twothirds. NMFS also agrees with 

comments indicating the mandatory 

circle hook use in tournaments will be 

viable and enforceable for the reasons 

discussed in the response to Comment 

41. NMFS also concurs with the need to 

continue educational efforts to better 

educate anglers in the use and benefits 

of circle hooks, as noted by some 

commenters, and encourages anglers to 

minimize fight times, release fish 

quickly, and to release fish in a manner 

that maximizes the probability of 

survival to further minimize billfish 

mortality. NMFS agrees with 

commenters who suggest that there is 

growing international momentum to use 

circle hooks in various fisheries. 

However, NMFS sees a need for 

continuing pressure on the international 

community to implement circle hook 

use more rapidly. As discussed in the 

response to Comment 46, a general 

definition of circle hooks is included in 

the current Federal regulations 

governing Atlantic HMS, and NMFS 

understands the desire of anglers and 

tournament operators for additional 

circle hook specifications. However, an 

index of detailed hook specifications for 

each size of circle hook that could be 

used in the recreational billfish fishery 

is not available at this time. NMFS is 

working on definitions of circle hooks 

that could be applied in future 

rulemakings. Further, to ease concerns 

of anglers and simplify hook choice, 

NMFS is considering working with hook 

manufacturers to ensure that all hooks 

marketed as circle hooks are true circle 

hooks. Implementing circle hook 

requirements in portions of the 

domestic recreational billfish fishery 

will demonstrate to the international 

community the conservation benefits of 

these hooks, and the commitment of the 

U.S. to billfish conservation. Improving 

post-release mortality in both the 

commercial and recreational fisheries is 

a critical component of halting the 

current decline of Atlantic marlin 

populations. NMFS agrees that the 

commercial fishing sector is subject to a 

number of restrictions to reduce bycatch 

and bycatch mortality. However, with 

regard to the hook requirements 

analyzed in this rulemaking, NMFS 

believes that the data indicate that circle 

hooks can reduce post-release mortality 

in the recreational billfish fishery. 

Comment 48: NMFS received a 

number of comments conditionally 

supporting implementation of circle 

hooks in billfish fisheries, including: the 

use of circle hooks should be voluntary 

until NMFS develops a specification on 

the off-set and shank length; we support 

alternative E3, circle hooks in 

tournaments, provided it includes 

provisions to conduct cooperative 

scientifically valid research, determine 

and specify minimum design 

specifications for circle hooks, require 

the handling and release equipment be 

on board, and allow for voluntary 

participation in handling and release 

workshops. The current definition for a 

circle hook is not adequate. Rather, 

NMFS needs to outline minimal design 

specifications as was done in the NED 

experimental design; and, if voluntary 

conversion to circle hooks is low, then 

I would support their mandatory use. 

Response: As discussed fully in 

Chapter 4 of the Final Consolidated 

HMS FMP and in the response to 

Comment 45 above, NMFS believes it is 

appropriate to require circle hooks for 

HMS permitted vessels when 

participating in Atlantic billfish 

tournaments at this time, despite a lack 

of detailed circle hook specifications. 

NMFS is continuing to develop more 

detailed circle hook specifications, but 

believes that the conservation benefits 

derived from circle hook requirements 

at this time outweigh any possible 

adverse impacts that may result from a 

lack of detailed circle hook 

specifications. NMFS has not 

considered or proposed any restrictions 

on scientific research in the Final 

Consolidated HMS FMP. Interested 

parties may conduct scientific research 

as appropriate under the selected circle 

hook alternative. Should the design of 

such scientific research call for utilizing 

gears or undertaking activities 

prohibited by regulation, interested 

parties may apply for either an 

Exempted Fishing Permit or Scientific 

Research Permit, as appropriate. 

Requiring handling and release 

equipment and workshops for the 

recreational sector is beyond the scope 

of this rulemaking, but may be 

considered in a future rulemaking, if 

appropriate. NMFS has selected an 

alternative requiring mandatory shark 

identification workshops for federally 

permitted shark dealers, as well as 

mandatory protected resources 

identification and release and 

disentanglement workshops for longline 

and gillnet vessel owners and operators. 

However, to the extent possible, these 

workshops will be open to other 

interested parties, including recreational 

fishery participants. As previously 

discussed, NMFS is unable to determine 

what percentage of billfish trips deploy 

circle hooks. However, the Agency 

believes that the data clearly 

demonstrate significant conservation 

benefits can be derived from the use of 

circle hooks in portions of the 

recreational billfish fishery. 

Comment 49: NMFS received 

comments regarding the timing of 

implementing possible circle hook 

requirements suggesting the need for a 

short phase-in of circle hooks into 

tournaments and the recreational fishery 

and advance notice of impending circle 

hook regulations to allow for changes in 

the rules and advertising, and to inform 

tournament participants of potential 

circle hook requirements. Commenters 

also suggested that educational efforts 

should be increased to promote and 

enhance the growing recreational 

awareness, and use, of circle hooks. 

Response: NMFS surveyed a number 

of tournament operators in the Atlantic, 

Gulf of Mexico, and Caribbean to better 

understand various aspects of 

tournament operations. NMFS 

determined that a delayed date of 

effectiveness of between four and six 

months would likely provide adequate 

time for tournament operators and 

participants to adjust tournament rules, 

formats, and advertising, as necessary, 

as well as to notify anglers of changes, 

and allow anglers to adjust fishing 

practices and take other steps, as 

appropriate, to minimize any potential 

adverse impacts stemming from selected 

circle hook requirements. As such, 

given the publication of this Final Rule 

in September 2006, the effective date for 

the selected circle hook alternative is 

January 1, 2007. This effective date is 

consistent with the effective date 

proposed for preferred alternative E3 as 

contained in the Draft Consolidated 

HMS FMP. NMFS has also had a circle 

hook public education program in place 

for a number of years to educate anglers 

and encourage the use of circle hooks in 

recreational fisheries. 

Comment 50: Why would the 

recreational fishery not be allowed to 

have offset hooks, while the PLL fishery 

can have a 10 percent offset? 

Response: Pelagic longline circle hook 

and bait requirements were developed 

to specifically address bycatch and 

bycatch mortality of Atlantic sea turtles, 

while the selected circle hook 


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requirements for Atlantic HMS 

permitted fishermen participating in 

Atlantic billfish tournaments are 

intended to reduce post-release 

mortality of Atlantic billfish. In other 

words, they were developed to address 

different issues. The pelagic longline 

fishery may only possess circle hooks 

offset up to 10 degrees if they are 18/0 

or larger in size. The offset was 

determined to be necessary to allow the 

use of large baits (e.g. whole Atlantic 

mackerel), which can shield the hook. 

The recreational billfish fishery 

typically uses significantly smaller 

hooks (sizes 8/0 and 9/0), which, if 

offset, may diminish the conservation 

benefit of circle hook requirements by 

resulting in higher rates of deep hooking 

and soft tissue damage to vital organs. 

Comment 51: NMFS received 

comments on the potential applicability 

of circle hook requirements of preferred 

alternative E3, which would require 

billfish tournament participants to use 

non-offset circle hooks when deploying 

natural baits, including: would 

participants in tournaments that offer 

prizes for both billfish and non-HMS 

species be required to use circle hooks 

for the non-HMS species; and would the 

circle hook requirement apply to vessels 

fishing in U.S. waters, or to all U.S. 

flagged vessels everywhere? 

Response: Anglers aboard HMS 

permitted vessels, or vessels that are 

required to be permitted, and are 

participating in Atlantic billfish 

tournaments will be required to use 

non-offset circle hooks when deploying 

natural baits and natural bait/artificial 

lure combinations. However, HMS 

permitted vessels participating in 

Atlantic billfish tournaments will be 

able to deploy J-hooks on artificial lures. 

Circle hooks will be required for U.S. 

flagged vessels possessing an HMS 

permit and participating in an Atlantic 

billfish tournament regardless of where 

that vessel is fishing. 

Comment 52: NMFS received a 

number of comments and suggestions 

on potential gear and bait restrictions or 

policy programs beyond those analyzed 

in the Draft Consolidated HMS FMP, 

including: there should be no live bait 

fishing; prohibit the use of ‘‘live bait’’ in 

all HMS J-style hook fisheries and areas 

known to have billfish interactions; the 

use of kites and offset circle hooks may 

be more damaging than J-hooks; NMFS 

should allow only one hook per lure to 

reduce foul hooking and injuries to the 

fish and anglers; NMFS should 

implement minimum line test 

requirements during the season or in 

tournaments; NMFS should create a 

buyback program for J-hooks; and, it 

would be useful to convene a summit of 

HMS tournament directors to work on a 

protocol to get anglers to switch to circle 

hooks. 

Response: NMFS appreciates the 

thoughtful and creative suggestions 

made by commenters to address billfish 

issues. Although these ideas were not 

specifically considered in the Draft 

Consolidated HMS FMP, NMFS is 

investigating their potential and may 

consider them in a future rulemaking if 

appropriate. 

Comment 53: NMFS received a 

number of questions specific to 

tournament landings of billfish in South 

Carolina, including: how many billfish 

are caught annually in South Carolina 

tournaments? What is the number 

harvested for weigh-in versus the 

number released? What is the estimated 

mortality for those released? What is the 

financial gain to the state? 

Response: An examination of the 

Recreational Billfish Survey (RBS), 

which records tournament landings, 

indicates that an average of four Atlantic 

billfish (blue marlin, white marlin, and 

sailfish) were landed in South Carolina 

in tournaments annually for the period 

1999 - 2004, inclusive. A high of seven 

blue marlin were landed in tournaments 

in South Carolina in 1999, and a low of 

one blue marlin was landed in 2002. In 

total, for the period 1999 - 2004, 25 

billfish were retained and 73 were 

released in tournaments, as reported 

through the RBS. According to RBS 

data, between seven and eight (7.6) 

tournaments per year were conducted in 

South Carolina. Rounding-up to an 

estimate of eight tournaments per year, 

and applying an average value of 

$1,375,481 per tournament, the 

estimated impact of tournaments to 

coastal South Carolina equates to 

$11,003,848. 

The commenter also indirectly 

suggested that the alternatives selected 

to address billfish mortality would 

result in the cancellation of South 

Carolina’s tournaments resulting in a 

estimated loss of $11 million dollars to 

the state. NMFS does not agree with this 

suggestion. Circle hook requirements are 

not expected to result in decreased 

tournament participation, given the high 

catch and release rate practiced by 

billfish anglers, the fact that all U.S. 

Atlantic billfish tournament anglers will 

have to abide by the same circle hook 

requirements, the low number of 

marlins that are annually landed in 

South Carolina, and because marlin are 

available for landing. South Carolina 

tournaments are not likely to be affected 

by the 250 fish marlin landing limit 

either, primarily because all South 

Carolina tournaments occur prior to the 

date at which any potential estimated 

impacts are projected to occur (August 

22), based upon the assumptions 

described in Chapter 4 of the Final 

Consolidated HMS FMP. 

iv. Circle Hooks and/or Post-Release 

Mortality Data 

Comment 54: NMFS received several 

comments on the adequacy of some of 

the studies cited in development of the 

Draft Consolidated HMS FMP, 

including: the Horodysky and Graves 

study is flawed because it is based on 

a sample size of only 40 fish and 

because they landed the fish in 30 - 40 

minutes which is unreasonable. Most 

anglers will land their fish much more 

quickly in 5 - 10 minutes thus reducing 

stress on the fish and increasing 

survival rates; the Horodysky and 

Graves study concludes that there is a 

35 percent greater likelihood that a 

white marlin will survive release if 

taken on a circle hook, rather than a Jhook. Other factors resulting in postrelease mortality must come into play; 

e.g., no one would expect fish fought for 

83 minutes ((DR02–04) or 46 minutes 

(VZ03–11)) to survive and it has nothing 

to do with the type of hook used. Yet, 

the study takes into consideration 

nothing but the type of hook used to 

conclude that hook type alone results in 

a lower mortality rate; one of the circle 

hook studies cited in the DEIS is 

problematic because it was conducted 

in the Pacific Ocean (Guatemala), the 

vessel’s captains were required to use 

offset circle hooks rather than non-offset 

circle hooks, the methods do not 

represent how fishermen fish, and the 

study does not contain a comparison of 

circle hooks versus J-hooks. 

Response: NMFS appreciates the 

concerns expressed over the methods 

and/or validity of the studies cited in 

the Draft and Final Consolidated HMS 

FMP. Nevertheless, the studies cited in 

Final Consolidated HMS FMP have been 

peer-reviewed and constitute the best 

available science regarding the topics 

under discussion. NMFS would 

appreciate additional relevant peerreviewed studies on these subjects if the 

commenter is aware of any such studies 

because the Agency is always searching 

for, and required to utilize, the best 

available scientific information for 

fishery management actions. 

Comment 55: NMFS received a 

number of comments that recommended 

research and data collections, or asked 

about the availability of certain data, 

including: we recommend research to 

determine the impacts of circle hooks 

on catch rates, not only of billfish, but 

other species such as dolphin, wahoo, 

and tuna; NMFS should conduct studies 

on the post-release mortality of sailfish 


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with circle versus J-hooks in the 

Atlantic Ocean. Do not rely on studies 

from the Pacific Ocean because the 

sailfish are different between the 

oceans; more data from pop-up satellite 

(PSAT) tags and angler experience is 

needed to provide a foundation for any 

major change in regulations pertaining 

to marlins; has there been any research 

on exhaustion mortality, e.g., fighting 

fish for different times on different gear 

(drop back, hook type, etc) and the 

resultant impacts on mortality?; we see 

big blue marlin occasionally and are 

wondering about post-release mortality 

and catch-and-release rates. Predation 

should be considered in estimating postrelease mortality; NMFS should conduct 

additional studies to identify more 

effective ways for the pelagic longline 

fishery to reduce bycatch of marlin and 

sharks; NMFS should evaluate the 

impacts of using ‘‘live bait’’ and circlestyle hooks as well as careful handling 

and release tools and procedures; and, 

NMFS should further investigate how 

the feeding and behavior of Atlantic 

blue marlin may affect catch rates with 

circle hooks. 

Response: NMFS appreciates these 

research recommendations as a way to 

help guide future research efforts and 

funds. The Agency is always looking 

for, and appreciative of, relevant 

research suggestions and additional data 

that can benefit the management of 

Atlantic HMS. The answers to many of 

the research suggestions could 

potentially benefit management. Some 

of the research suggestions contributed 

by commenters are currently under 

investigation by either NMFS or private 

sector entities. NMFS will consider 

these suggestions in the future, as 

appropriate. 

Comment 56: Off-set circle hooks 

show less mortality than non off-set 

circle hooks. 

Response: NMFS is unaware of data 

showing off-set circle hooks result in a 

lower mortality rate than non-offset 

circle hooks. NMFS would appreciate 

receiving any such data that may 

support this contention, and will 

consider it in future rulemakings, as 

appropriate. 

Comment 57: The Agency has not 

published specifications for circle hooks 

and I am requesting clarification of the 

definition of ‘‘non-offset circle hooks’’

by NMFS because, in part, each 

manufacturer creates its own definition 

for non-offset circle hooks. 

Response: A general definition of 

circle hooks is included in the current 

Federal regulations governing Atlantic 

HMS, and NMFS understands the desire 

of tournament operators for additional 

circle hook specifications. The current 

definition of ‘‘circle hook’’ in 50 CFR 

635.2 reads: ‘‘A circle hook means a 

fishing hook originally designed and 

manufactured so that the point of the 

hook is turned perpendicularly back 

toward the shank to form a generally 

circular or oval shape.’’ NMFS is 

working on definitions for circle hooks. 

At this time, however, detailed hook 

specifications for each size circle hook 

that could be used in the recreational 

billfish fishery are not available. There 

are no standard industry hook 

specifications. As detailed in the 

discussion of the selected circle hook 

alternative in Chapter 4 of the Final 

Consolidated HMS FMP, NMFS finds 

that it is appropriate at this time to 

require the use of non-offset circle 

hooks in portions of the recreational 

billfish fishery to reduce post-release 

mortalities in the recreational billfish 

fishery. Further, to ease concerns of 

anglers and simplify hook choice, 

NMFS is considering working with hook 

manufacturers to ensure that all hooks 

marketed as circle hooks are true circle 

hooks. 

Comment 58: The Maryland 

Department of Natural Resources 

submitted a comment indicating that 

they would be willing to work with 

NMFS to teach voluntary use of circle 

hooks, noting that anglers must learn 

how to fish these hooks and that 

education for the offshore fishermen is 

necessary. 

Response: NMFS appreciates the State 

of Maryland’s willingness to work with 

the Agency to reach out to anglers and 

educate them on the use of circle hooks. 

Circle hooks have been shown to 

effectively reduce post-release mortality 

of many species while having little 

impact on rates of catch. The Agency 

hopes that the offer by the State of 

Maryland will remain open given the 

mandatory circle hook requirements for 

tournaments in this rule. 

Comment 59: NMFS’s statement in 

the Draft Consolidated HMS FMP that 

increases in recreational fishing effort 

and stable fishing mortality indicate that 

white marlin are decreasing in number 

is incorrect. Fishing mortality has not 

increased, the recreational fishing 

community is releasing more of them. 

Response: NMFS was unable to locate 

this statement in the Draft Consolidated 

HMS FMP. However, NMFS believes 

that the commenter may have intended 

to state that increases in recreational 

fishing effort and stable landings of 

white marlin indicate that white marlin 

may be decreasing in number. The 

number of recreationally landed 

Atlantic white marlin reported to ICCAT 

between 2001 and 2004 varied 

considerably, ranging from a high of 191 

in 2002 to a low of 23 in 2003. The 

number of Atlantic white marlin 

reported to NMFS via the Recreational 

Billfish Survey has remained relatively 

stable over the same period. However, 

the release rate of live Atlantic white 

marlin in the recreational fishery has 

also remained stable. In the face of 

increased effort, a lack of increases in 

landings, when coupled with stable 

release rates, implies decreased angler 

success. Decreased angler success could 

be attributable to a number of factors. 

One factor could be that the fishing 

mortality rate of Atlantic white marlin 

is more than eight times higher than the 

population can sustain, so the stock size 

is diminished. Furthermore, as 

discussed in Chapter 4 of the Final 

Consolidated HMS FMP, the current 

estimate of recreationally caught 

Atlantic white marlin post-release 

mortality is now significantly higher 

than previous estimates, so an increase 

in the number of releases would be 

anticipated to result in additional 

mortalities. 

Comment 60: Six to ten thousand 

white marlin are caught each year by 

U.S. fishermen, both commercial and 

recreational. I have data showing that 

commercial mortality is higher than 

recreational mortality in general, but in 

the past 6 years, the recreational 

mortality has exceeded the commercial 

mortality. 

Response: New post-release mortality 

estimates allowed NMFS to examine 

total mortality contributions of the 

commercial and recreational sectors for 

Atlantic white marlin over the past four 

years. Mortality varies greatly by year 

and data set. In some years, using some 

data sets, the recreational mortality 

contribution appears to exceed the 

commercial mortality contribution and 

in some years the reverse appears to be 

true. Please see Appendix C in the Final 

Consolidated HMS FMP for more 

detailed information by year and fishery 

sector. Appendix C provides a range of 

mortality estimates, but does not 

attempt to definitively identify mortality 

contributions, rather, the estimates 

provided in that table are intended to 

provide reference points for discussion. 

NMFS will continue to examine this 

issue as new and refined data become 

available. 

v. Elimination of the ‘‘No Sale’’

Exemption 

Comment 61: The ‘‘no sale’’

exemption for Atlantic billfish should 

be removed. The sale of all billfish in 

the U.S. should be prohibited. 

Response: NMFS agrees that the 

exemption to the no sale provision for 

Atlantic billfish should be removed. 


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However, NMFS does not agree that the 

sale of all billfish, including those from 

Pacific stocks, should be prohibited. 

Stock status of Pacific billfish is 

currently unknown, and as such a 

nation-wide ban on the sale of billfish 

may not be appropriate. The Certificate 

of Eligibility program in place for 

Atlantic billfish is designed to ensure 

that no Atlantic billfish enter the stream 

of commerce, while allowing Pacific 

billfish to be sold legally. However, the 

Agency may reconsider a prohibition on 

the sale of Pacific billfish in the future, 

as necessary and appropriate. 

Comment 62: The potential ecological 

impact of billfish sales from fishermen 

in Puerto Rico would be minimal 

because the individuals who may sell 

Atlantic billfish take only 10 - 15 fish 

a year, and only keep fish that come to 

the boat dead in an effort to minimize 

waste. 

Response: NMFS has little data on the 

extent of illegal sales of billfish in 

Puerto Rico and cannot verify the 

veracity of the commenter’s claims or 

assess the impact of these sales. NMFS 

has received a significant number of 

anecdotal reports of sales of Atlantic 

marlin in Puerto Rico. The number of 

these anecdotal reports suggests that a 

sizable number of Atlantic marlin may 

be illegally sold and implies that more 

fish than just those that come to the boat 

dead are illegally entered into 

commerce. 

Comment 63: The sale of billfish is 

legal outside of the U.S. Do foreign 

vessels fishing in waters of the U.S. 

need to obtain U.S. fishing permits and 

abide by U.S. regulations? 

Response: Foreign commercial vessels 

are not allowed to fish in waters of the 

U.S. unless there is an international 

fishery agreement or some other specific 

authorization under the MagnusonStevens Act for such activity. Such 

vessels would be subject to permit 

requirements and other statutory and 

regulatory provisions. Foreign fishing 

vessels which are not operated for profit 

may engage in recreational fishing in 

U.S. federal and state waters. However, 

the vessels must obtain the requisite 

permits (e.g., HMS Angling permit and/ 

or any state permits) and comply with 

all applicable federal and/or state laws. 

Since the 1988 Atlantic Billfish FMP, 

the U.S. has prohibited commercial 

retention of billfish. 

Comment 64: How many comments 

were received from Puerto Rico on the 

proposed removal of the no sale 

exemption for billfish? 

Response: No comments from Puerto 

Rico directly addressed removal of the 

no sale provision. However, one 

commenter from Puerto Rico requested 

increased law enforcement at 

establishments that may illegally sell 

Atlantic billfish, such as restaurants. 

NMFS interprets this comment to be 

supportive of prohibiting sale of 

Atlantic marlin. Further, the Caribbean 

Fishery Management Council adopted a 

motion supporting elimination of the 

exemption to the no-sale provision in 

August of 2005. 

vi. General Billfish Comments 

Comment 65: The proposed Atlantic 

billfish alternatives are in direct conflict 

with the 1988 Billfish FMP and the 1999 

Billfish FMP Amendment’s stated 

objective of ‘‘Maintaining the highest 

availability of billfishes to the United 

States recreational fishery by 

implementing conservation measures 

that will reduce fishing mortality.’’

Response: NMFS disagrees. The 

Atlantic billfish provisions in this rule 

are consistent with the stated objective 

of maintaining the highest availability of 

billfishes to the U.S. recreational fishery 

by implementing conservation measures 

that will reduce fishing mortality. 

Recent studies by Cramer (2005) and 

Kerstetter (2005–in press) and analyses 

in the Final Consolidated HMS FMP 

indicate that recreational fishing 

activities contribute significantly to 

Atlantic billfish mortality. Because 

biomass levels of both Atlantic blue and 

white marlin are currently low, it is 

imperative for NMFS to implement 

conservation measures for the domestic 

recreational Atlantic billfish fishery to 

reduce post-release mortality and better 

ensure the highest, long-term 

availability of these important species to 

the United States recreational fishery. 

The selected management measures, 

specifically the requirement to utilize 

non-offset circle hooks when deploying 

natural bait in billfish tournaments, is 

an important step towards 

accomplishing this objective. 

Comment 66: NMFS must determine 

the sustainable biomass for spearfish 

and sailfish independently, as soon as 

possible. 

Response: NMFS does not conduct its 

own assessments for spearfish and 

sailfish. Due to the highly migratory 

nature of these species, stock 

assessments are conducted by the 

Standing Committee on Research and 

Statistics (SCRS) of ICCAT. The last 

assessment for sailfish was conducted in 

2001. In that assessment, the SCRS 

expressed concern about the incomplete 

reporting of catches, lack of sufficient 

reports by species, and evaluations of 

new methods used to split the sailfish 

and spearfish catch and to index 

abundance. The SCRS recommended 

that all countries landing sailfish/ 

spearfish, or having dead discards, 

report these data to the ICCAT 

Secretariat. The SCRS also indicated 

that it should consider the possibility of 

a spearfish ‘‘only’’ stock assessment in 

the future. 

Comment 67: I support decreasing the 

mortality on Atlantic billfish as much as 

possible, the focus of billfish 

management has to be on post-release 

mortality. 

Response: This rule, which will 

require the use of non-offset circle 

hooks with natural bait in billfish 

tournaments by HMS permitted vessels, 

is intended to reduce the post release 

mortality of Atlantic billfishes. A recent 

study by Horodoysky and Graves (2005) 

has shown that circle hooks can reduce 

post-release mortality on white marlin 

by as much as 65 percent, when 

compared to J-hooks. 

Comment 68: Billfish conservation is 

an international problem, and the focus 

has to be international. 

Response: NMFS agrees that billfish 

conservation is an issue that must be 

addressed at the international level. 

Nevertheless, given the low biomass 

levels of Atlantic blue and white marlin, 

and the importance of these species to 

the domestic recreational fishery, it is 

necessary to implement measures to 

reduce post-release mortality to the 

extent practicable in the domestic 

recreational Atlantic billfish fishery. 

The U.S. will continue to vigorously 

pursue international agreements at 

ICCAT to reduce billfish mortality levels 

caused by foreign fishing vessels. 

Comment 69: NMFS should designate 

all marlin, spearfish, sailfish, and sharks 

as catch-and-release species, and allow 

fishing for these species only with rod 

and reel and circle hooks. 

Response: In the Draft Consolidated 

HMS FMP, NMFS proposed a 

prohibition on landings of Atlantic 

white marlin. Although there was some 

support for this measure, many 

commenters indicated that a white 

marlin landings prohibition was 

unnecessary, and that it would produce 

significant adverse social and economic 

impacts. After much consideration, 

NMFS has decided not to select this 

alternative at this time. Many HMS 

recreational anglers already practice 

catch and release fishing for white 

marlin and other species. Furthermore, 

the commercial sale of Atlantic billfish 

is prohibited, landings of longbill 

spearfish are prohibited, and several 

shark species may not be landed. Strict 

quotas and other management measures 

based upon the best available scientific 

information govern commercial 

landings of most other shark species, 

while the recreational sector is required 


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to adhere to shark bag limits and 

minimum size restrictions. As a result, 

mandatory catch and release in the 

recreational sector may not be necessary 

at this time and prohibiting all 

commercial shark landings is not 

necessary. Domestically, the most 

important factor in conserving billfish is 

to improve their survival after the catch 

and release experience. This rule 

requires HMS permitted fishermen to 

use non-offset circle hooks when 

deploying natural baits in billfish 

tournaments. This measure will 

complement existing circle hook 

requirements in the commercial PLL 

fishery by reducing post-release 

mortality and contributing to the 

rebuilding of Atlantic billfish stocks. 

Comment 70: The economic effects 

associated with the proposed billfish 

measures go far beyond the initial 

impacts that were analyzed in the Draft 

Consolidated HMS FMP. 

Response: Economic impacts are a 

fundamental consideration in the 

Agency’s decision making process. 

Oftentimes, however, the data are not 

sufficient to predict, for example, how 

recreational anglers might react to 

proposed management measures. If the 

measures change, would anglers switch 

to other species, quit fishing altogether, 

take fewer trips, or travel shorter 

distances? Each of these potential 

behavioral reactions would impart 

different economic impacts. One of the 

primary reasons for conducting public 

hearings and soliciting public comment 

is to obtain supplemental information 

on the analyzed impacts associated with 

proposed management measures. All 

written comments, as well as those 

received verbally at public hearings, 

were considered by the Agency in the 

selection of final management 

alternatives. NMFS will continue 

working to improve available social and 

economic data and analyses. 

Comment 71: NMFS should require a 

Billfish Certificate of Eligibility to help 

improve compliance, facilitate 

enforcement and improve information 

on billfish shipments coming into the 

U.S. 

Response: A Certificate of Eligibility 

for Billfishes is required under 50 CFR 

635.31(b)(2)(ii), and must accompany all 

billfish, except for a billfish landed in 

a Pacific state and remaining in the state 

of landing. This documentation certifies 

that the accompanying billfish was not 

harvested from the Atlantic Ocean 

management unit, and identifies the 

vessel landing the billfish, the vessel’s 

homeport, the port of offloading, and 

the date of offloading. The certificate 

must accompany the billfish to any 

dealer or processor that subsequently 

receives or processes the billfish. The 

certificate of eligibility helps to 

maintain the recreational nature of 

Atlantic billfish fishery, with no 

commercial trade. 

Comment 72: NMFS received a 

number of comments from recreational 

fishery participants regarding pelagic 

longline fishing, its impact on billfish, 

and suggestions for new management 

measures that should be researched or 

implemented. The comments included: 

new data show that just under 65 

percent of all white marlin caught as 

bycatch on pelagic longline vessels are 

dead, or die soon after being released 

alive; it makes absolutely no sense to 

close recreation fishing which kills less 

than 1 percent of the fish caught and 

allow commercial fishing which kills 

almost 100 percent of the billfish 

caught. The major source of billfish 

mortality (pelagic longlining) still has 

not been satisfactorily regulated to 

adequately protect these fish; the 

commercial pelagic longline fishery is 

causing the decline in billfish 

abundance; billfish were making a 

comeback until longline fishing of their 

prey species, dolphin and wahoo, was 

allowed. Our club used to tag and 

release 35 to 40 marlin per year. Now 

we see only five to six marlin tags and 

most of them are from the other side of 

the Gulf Stream; NMFS should limit the 

length of pelagic longlines; and, limit 

the number of hooks that pelagic 

longline fishermen are allowed to set, 

and require that pelagic longline vessels 

retrieve their gear every three hours to 

reduce billfish mortality. 

Response: Many commenters stated 

that the recreational HMS fishery has 

only a minor impact on billfish 

populations relative to the commercial 

PLL fleet, and that additional 

management measures should be 

imposed upon the commercial PLL fleet 

rather than upon the recreational sector. 

To address this comment, NMFS 

examined data from the pelagic longline 

logbook program and the RBS, MRFSS, 

and LPS databases. New information on 

recreational and commercial postrelease mortality rates (Horodysky, 

2005, and Kerstetter, 2006, 

respectively), when combined with 

these databases, indicates that in some 

years, the total mortality contribution of 

the domestic recreational billfish fishery 

may equal or exceed the total mortality 

contribution of the domestic pelagic 

longline fleet for Atlantic white marlin. 

As described in Appendix C of the Final 

Consolidated HMS FMP, estimates of 

total annual recreational white marlin 

mortality (which combines landings, 

dead discarded fish, and estimated postrelease mortalities) vary greatly by data 

set and year. MRFSS and LPS databases 

indicate that, for the period 2001 - 2004, 

inclusive, the aggregate level of 

recreational mortality was 

approximately three times and two 

times higher, respectively, than 

aggregate mortality contributions (dead 

discards and estimated post-release 

mortality) of the domestic pelagic 

longline fleet. Using RBS data, a known 

subset of recreational effort, estimated 

aggregate domestic recreational 

mortality appears to be about 71 percent 

of estimated total domestic pelagic 

longline mortality for the same period 

with regard to white marlin. When 

taken in combination, and in 

consideration of the limitations and 

uncertainties associated with each data 

base involved, two general conclusions 

can be drawn: (1) The aggregate 

domestic recreational fishing mortality 

contribution is higher than previously 

thought with regard to Atlantic white 

marlin; and (2) there is more parity 

between the mortality contributions of 

the domestic recreational and domestic 

pelagic longline fleets than previously 

thought. Cramer (2005) and Kerstetter 

(2006) also examined this same issue to 

varying degrees. Both papers support 

the same basic conclusion drawn in this 

Final Consolidated HMS FMP, that in 

some years, the domestic recreational 

billfish fishery may cause equivalent, or 

even greater, levels of mortality on 

Atlantic white marlin populations than 

the domestic pelagic longline fishery. 

This finding, which is contrary to 

widely held beliefs, appears to be the 

result of new data indicating higher 

post-release estimates for recreationally 

released white marlin and size 

differences between the two fisheries. 

Presently, the domestic commercial PLL 

fleet is regulated by a limited access 

permit program; observers; vessel 

upgrading restrictions; year-round and 

seasonal closed areas; ICCATrecommended quotas; minimum size 

restrictions; circle hook requirements; 

bait restrictions; careful release 

protocols; mandatory logbooks; and a 

VMS requirement, among others. The 

recreational HMS sector is governed by 

an open access permit program; 

minimum size restrictions; reporting 

requirements for swordfish, BFT, and 

billfish; gear restrictions; a no-sale 

provision; and possession limits for 

swordfish, sharks and tunas, among 

others. The selected billfish 

management measures are intended to 

reduce recreational post-release 

mortality of white marlin, because 

current estimates are substantially 

higher than previously thought. NMFS 

will continue to evaluate the need for 


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additional management measures for 

both the domestic PLL fleet and the 

recreational HMS fishery. NMFS also 

recognizes that foreign commercial 

longline vessels contribute significantly 

to Atlantic billfish mortality, and will 

continue to pursue international 

agreements at ICCAT to reduce these 

levels. 

Comment 73: NMFS would be 

negligent not to require mandatory 

tournament registration at this time; 

tournament registration should include 

all contests in which any prize, award 

and/or monetary exchange is made 

relating to the capture of Atlantic HMS; 

I support alternative E9, which would 

implement a mandatory HMS 

tournament permit, because monitoring 

and enforcement of HMS tournaments is 

necessary; HMS tournaments need to be 

permitted because we need reporting 

from them. 

Response: NMFS currently requires 

that all tournament operators register 

any tournament awarding points or 

prizes for HMS with the HMS 

Management Division, at least four 

weeks prior to the commencement of 

the tournament. The regulations are 

being clarified to add that tournament 

registration is not considered complete 

unless the operator receives a 

confirmation number from NMFS. This 

clarification is expected to improve the 

HMS tournament registration process. In 

the Draft Consolidated HMS FMP an 

alternative to require a tournament 

permit was considered, but not further 

analyzed, because improvements to 

tournament registration, data collection, 

and enforceability can be achieved with 

less burden to the public and 

government by requiring a tournament 

confirmation number. Because HMS 

tournaments frequently change 

operators, names, and dates, a 

tournament permit would be 

burdensome to administer and enforce. 

NMFS believes that requiring a 

tournament confirmation number, 

issued by the HMS Management 

Division, will accomplish the same 

objective (i.e., increased compliance) as 

a tournament permit would. 

Management Program Structure 

A. BFT Quota Management 

Comment 1: NMFS received a number 

of comments on the management of the 

purse seine sector of the Atlantic BFT 

fishery. These comments consisted of: 

BFT fisheries need every opportunity to 

harvest the quota and not addressing the 

large medium tolerance limits imposed 

on the purse seine sector in this rule is 

disappointing; the Purse Seine category 

should be allowed to fish throughout 

the year provided quota is available; and 

the purse seine BFT fishery needs to 

become a ‘‘true’’ individual transferable 

quota (ITQ) fishery and thereby not 

addressing the ability to transfer purse 

seine quota outside the category is 

disappointing. Some comments stated 

that the Purse Seine category should be 

eliminated from the BFT fishery or 

purse seine vessels should be limited in 

the areas they fish to minimize any 

potential gear conflicts with commercial 

and recreational handgear vessels. 

Response: During this rulemaking, 

NMFS received many comments 

regarding management issues in the BFT 

fishery in general and the purse seine 

sector in particular. Many of these 

comments arise from recent issues 

regarding the status of BFT, 

underharvests in recent years, and 

current size and trip limits. ICCAT is 

conducting a stock assessment this 

summer that should provide additional 

information regarding the status of BFT 

and the current rebuilding plan. In 

November 2006, ICCAT may 

recommend new management measures 

for BFT. In addition to any future 

ICCAT recommendations for BFT, 

NMFS intends to conduct a rulemaking 

regarding all HMS permits that could 

include, among other things, further 

rationalizing some segments of the HMS 

fisheries, streamlining or simplifying 

the permitting process, restructuring the 

permit process (gear-based, speciesbased, or both), reopening some 

segments of the limited access system to 

allow for the issuance of additional 

permits, modifying when permits are 

renewed (fishing year or birth month), 

and considering dedicated access 

privileges (e.g., individual transferable 

permits). This future rulemaking may be 

better suited to address the entire range 

of purse seine comments that were 

received during this rulemaking. 

Comment 2: NMFS received a few 

comments regarding PLL in general and 

the incidental catch of BFT by PLL 

including: the effectiveness of the June 

PLL closure should be reevaluated in 

light of circle hook catch data; the PLL 

fishery should be afforded a greater 

opportunity to catch its targeted species 

of swordfish, allowable tunas, and 

sharks, especially considering the 

existing protections for BFT in the GOM 

and Florida East Coast, as well as 100 

percent circle hooks, careful handling 

and release tools, and certified training; 

NMFS should take incremental steps to 

ensure that the Incidental Longline 

category fully utilizes its domestic BFT 

allocation in order to reduce dead 

regulatory discards to the maximum 

extent feasible within this category’s 

allocation; due to the overall 

underharvest of U.S. Atlantic BFT 

quota, NMFS should cautiously relax 

the incidental catch criteria to reduce/ 

eliminate regulatory discards and 

effectively utilize this category’s quota. 

Response: NMFS thoroughly analyzed 

the incidental catch requirements of 

BFT by PLL vessels and published a 

final rule on May 30, 2003 (68 FR 

32414), that substantially revised the 

management scheme for this incidental 

bycatch of BFT. NMFS continues to 

gather information regarding the 

effectiveness of incidental harvest 

restrictions, as well as the effectiveness 

of all bycatch reduction measures that 

have been implemented in the PLL 

fishery. In addition, as more information 

becomes available, NMFS will 

reevaluate which measures, if any, it 

may be appropriate to add, modify, 

reduce, and/or remove all together. 

Comment 3: NMFS received two 

comments regarding rebuilding of the 

Western Atlantic BFT stock. These 

comments consisted of: Agency efforts 

should be more focused on the 

international BFT issues to be effective 

in rebuilding the stock; and, BFT stocks 

should be rebuilt by preventing the 

commercial interests from overfishing. 

Response: NMFS agrees that 

international cooperation is critical to 

rebuilding the BFT stocks. The U.S. has 

been at the forefront of efforts to 

develop appropriate rebuilding plans 

that balance biological and socioeconomic imperatives and will continue 

to press the international community to 

implement appropriate measures to 

rebuild Atlantic BFT stocks. ICCAT 

recommended the current U.S. BFT 

TAC based on the 1998 stock 

assessment for the Western Atlantic BFT 

stock and the rebuilding plan with the 

goal of achieving maximum sustainable 

yield within 20 years. Under the current 

rebuilding plan, the United States needs 

to maintain its allocation to prevent 

overfishing and contribute to rebuilding 

the stock. The U.S. quota is allocated to 

the commercial or recreational sector in 

accordance with the international 

rebuilding plan. In the past few years, 

all the commercial BFT categories have 

landed fewer fish than their allocations 

would allow for. Further, ATCA 

requires that no regulation promulgated 

under ATCA may have the effect of 

increasing or decreasing any allocation 

or quota of fish or fishing mortality level 

to which the U.S. agreed pursuant to a 

recommendation of ICCAT. 

Comment 4: Are herring issues 

addressed in this document in terms of 

the impacts they are having on BFT? 

Response: Atlantic herring, a food 

source for BFT, are currently managed 

under a separate fishery management 


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plan by the New England Fishery 

Management Council (NEFMC). The 

Atlantic herring fishery management 

plan is being amended. During a 

NEFMC meeting on January 31, 2006, 

the NEFMC approved a seasonal purse 

seine/fixed-gear-only fishery for the 

Western Gulf of Maine (Area 1A) from 

June 1 through September 31. The 

NEFMC’s action recognizes the 

importance of herring in the Gulf of 

Maine ecosystem. In addition, NMFS 

recognizes the importance of 

considering ecosystem interactions in 

fishery management planning, and 

addresses ecosystem management as 

one of the goals of the NMFS Strategic 

Plan. The Agency continues to work 

toward integrating an ecosystem 

approach into fishery management 

practices. 

Comment 5: Yellowfin tuna should 

not take a ‘‘back seat’’ to BFT, and 

NMFS needs to put more resources into 

yellowfin tuna data collection, analyses, 

and regulation. 

Response: NMFS acknowledges the 

importance of yellowfin tuna to the U.S. 

fishing industry. The latest SCRS report 

indicates that the current fishing 

mortality rate for yellowfin tuna may be 

higher than that which will support 

maximum sustainable yield on a 

continuing basis. NMFS has taken a 

number of actions during, and since, the 

implementation of the 1999 FMP to 

address the management of YFT 

fisheries (e.g., imposing limited access 

on the longline and purse seine sectors 

of the fleet and implementing a 

recreational retention limit). By taking 

precautionary initiatives for 

conservation measures, the U.S. will 

have a stronger negotiating position at 

ICCAT if additional management 

measures become necessary. NMFS 

currently has reporting programs in 

place to collect commercial and 

recreational YFT data. This information, 

in turn, is provided to ICCAT and the 

SCRS to be compiled with other 

information from member nations to be 

used in assessing the YFT stock. 

Therefore, NMFS maintains that no 

further action regarding the YFT 

fisheries is necessary at this time. 

However, NMFS will continue to 

monitor the status of the YFT fisheries 

as SCRS has indicated that the yellowfin 

tuna stock is fully-exploited and will 

pursue future actions if warranted. 

Comment 6: Does NMFS have the 

authority to close an area or region to 

BFT fishing via an inseason action? 

Response: NMFS has the regulatory 

authority to provide for maximum 

utilization of the BFT quota by 

conducting various types of inseason 

actions. The inseason actions may 

consist of: increasing or decreasing the 

General category daily retention limits; 

adding or waiving Restricted Fishing 

Days (RFDs); increasing or decreasing 

the recreational retention limit for any 

size-class BFT or change a vessel trip 

limit to an angler limit and vice versa; 

transferring quota to/from any fishing 

category or to the Reserve; closing 

domestic quota categories when that 

quota is reached, or is projected to be 

reached; and, closing/reopening the 

Angling category BFT fishery by 

accounting for variations in seasonal 

distribution, abundance, or migration 

patterns of BFT, or catch rates in one 

area, which may have precluded anglers 

in another area from a reasonable 

opportunity to harvest a portion of the 

Angling category quota. The Angling 

category BFT fishery or part of the 

fishery may be reopened at a later date 

if it is determined that BFT migrated 

into the other area. NMFS must consider 

specific criteria prior to taking each type 

of inseason action. Currently, NMFS has 

multiple sets of criteria, each one 

designed for a specific type of inseason 

action, that are used in making a 

determination. However, in this rule, 

NMFS is consolidating those lists to 

make the inseason action determination 

process more transparent and 

consistent. 

The end results of some inseason 

actions may be perceived as a closure of 

a certain geographic area. For instance, 

if NMFS were to implement a number 

of consecutive RFDs in the General 

category it will suspend fishing 

activities for that time period. NMFS 

also has the ability to implement an 

interim closure in the Angling category 

as described above in this response. An 

area closure for any other BFT category 

or a multi-year area closure for any BFT 

category will require a regulatory 

amendment, including public comment. 

Comment 7: The SAFMC supports 

alternative F3(c), which would provide 

an opportunity for a winter BFT fishery. 

Further, the Council supported an 

equitable BFT quota allocation for the 

South Atlantic region (North Carolina 

southward), as well as any other actions 

that will ensure fishermen in all the 

South Atlantic states (North Carolina, 

South Carolina, Georgia, and Florida’s 

East coast) have an opportunity to 

participate in this fishery. The SAMFC 

is concerned about the proposed 

January 1 starting date for BFT fishing 

because it will prevent underages from 

being carried over into the following 

January of the new fishing year. The 

ability to carry these underages forward 

can keep the fishery open through the 

month of January, which is critical to 

the fisheries south of North Carolina, off 

South Carolina, Georgia, and Florida. 

Response: Currently, the last General 

category time-period spans the winter 

BFT fishery which usually begins in 

November and runs through the end of 

the General category season (at the latest 

on January 31). Under this rule, the 

current time-period of October through 

January and the associated subquota 

will be adjusted so that the later portion 

of the fishery will consist of three 

separate time-periods; October through 

November, December, and January. 

With the implementation of the 

calendar year/fishing year changes in 

this rule, the December and January 

time-periods will fall in separate fishing 

years. Fisheries were not active across 

fishing years prior to the 1999 FMP, 

which originally adjusted the BFT 

fishery from a calendar year to a fishing 

year spanning two calendar years. 

Under this rule, the annual baseline 

quota for the January time-period will 

be 5.3 percent of the coastwide General 

category quota. As indicated in Section 

4.3.1.1 of the Final Consolidated HMS 

FMP, several options may be used to 

dispose of carryover of any under or 

overharvest during the December timeperiod. In the first alternative, any 

under or overharvest could be entirely 

rolled over into January of the following 

fishing year and added to the baseline 

5.3 percent allocation. Under this 

scenario, the entire underharvest would 

be added to the January time-period 

subquota, or the entire overharvest 

would be subtracted from the timeperiod subquota. In another potential 

alternative, 5.3 percent of the under or 

overharvest may be applied to the 

January time-period in addition to the 

baseline 5.3 percent allocation. In a 

third alternative, no under or 

overharvest would be added or 

subtracted from the January time-period 

subquota. NMFS will work with the 

affected constituents through the annual 

BFT specification process to determine 

the most appropriate approach based on 

constituent needs and Federal 

regulatory requirements. 

Comment 8: The allocations between 

domestic quota categories should be 

adjusted, specifically increasing the 

quota for the Angling category. 

Response: The Agency did not 

consider a modification to the sector 

allocations in this action; therefore, a 

separate rulemaking and FMP 

amendment would be needed to 

increase the allocation to the Angling 

category. The original allocations reflect 

the sector’s historical share of the 

landings during the 1983 through 1991 

time period, and were codified as part 

of the 1999 FMP process. 


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Comment 9: NMFS received 

numerous comments for and against the 

adjustment of the General category timeperiods and associated subquotas. Those 

comments in support of an adjustment 

include: September through December 

have been the strongest months for BFT 

fishing and these allocations should be 

increased; General category time-period 

subquota allocations should allow for a 

dependable winter BFT fishery 

according to the percentages in the 

North Carolina Department of Marine 

Fisheries (NCDMF) Petition for 

Rulemaking; General category timeperiod and subquota allocations should 

reflect the migration of the fish through 

a particular area; there needs to be a 

balance between flexibility and 

predictability; the General category 

should be split across 12 months of 

equal portions and any arbitrary closure 

date should be removed to allow full 

harvest of the quota; is there a biological 

reason we do not allow the General 

category BFT fishery to be prosecuted in 

the months of February through May; all 

selected alternatives should allow for 

the full utilization of the available quota 

so the U.S. can prove we have a stake 

in these fisheries. Vessels need to be 

able to catch fish and then make money 

off those fish to reinvest into the fishery 

in the following years as this is a sign 

of a healthy fishery; catching wild BFT 

throughout the year is in the best 

interests of U.S. fishermen and the U.S. 

should remove any arbitrary controls 

(e.g., seasonal closures) to allow for the 

harvest of U.S. quota; and, regardless of 

which alternative is selected, when the 

fishery converts back to the calendar 

year, a methodology needs to be 

developed to allow quota to carry 

forward from December into January, 

i.e., across years, in a timely fashion. In 

addition, there was broad support at the 

March 2005 AP meeting for revising the 

General category time-periods and 

subquotas to allow for a winter fishery, 

due to the slight increase in quota as 

well as on informal agreements between 

user groups and the Agency. 

Comments in opposition of an 

adjustment include: the Agency needs 

to manage the BFT fishery in the 

traditional manner; and changing the 

General category time-periods and 

subquotas will have negative impacts on 

the traditional New England fishermen. 

Response: This rule to amend the 

coastwide General category time-periods 

and their associated subquota 

allocations will strike a balance between 

formalizing a winter fishery, 

acknowledging recent trends in the BFT 

fishery, as well as recognizing the 

traditional patterns of the fishery. This 

rule will also allow for business 

planning throughout the entire General 

category season. In light of recent 

underharvests in the General category, 

NMFS is aware of the need to provide 

reasonable opportunities to harvest the 

General category quota, and how this 

relates to requests to extend the fishery 

throughout the year. However, as catch 

rates in the BFT fishery can increase 

quite dramatically in a short time 

period, there are concerns in allowing a 

fishery to emerge that may be 

unsustainable or cause 

overcapitalization on a species that is 

currently designated as overfished. 

Comment 10: NMFS received 

comments both in favor of and opposed 

to the preferred alternative to establish 

General category time-periods, 

subquotas, and geographic set-asides via 

annual framework actions. The 

comment in favor stated the preferred 

alternative allows for a balance between 

flexibility and predictability in the 

General category BFT fishery. The 

comment opposed stated the overall 

BFT management program should not 

be modified. 

Response: Annual regulatory 

framework actions will be used to 

establish and adjust the General 

category time-periods, subquotas, and 

geographic set-asides. This procedural 

change to the management of this 

category will expedite the process, 

providing the agency with greater 

flexibility to adapt to changes in the 

fishery and the industry with greater 

predictability in the management of the 

General category’s upcoming fishing 

year. The General category will have 

consistent time-periods and subquota 

allocations from one year to the next 

unless ICCAT provides a new 

recommendation for the U.S. BFT TAC. 

Comment 11: NMFS received a 

number of comments opposing the 

removal of the Angling category North/ 

South dividing line and one comment 

supporting its removal. The comments 

include: the BFT North/South dividing 

line should be maintained as it was 

created to provide ‘‘fair and equitable’’

distribution of the BFT quota; it appears 

that the reason for removing the North/ 

South line is not due to a lack of real 

time data, but because of participant 

noncompliance with the current call-in 

system; NMFS should devise a reliable 

real-time data collection system for 

recreational BFT landings; the funds 

used to support the current LPS 

program should be reallocated to 

implement tail tag programs at the state 

level, similar to North Carolina and 

Maryland; and the agency should 

develop more recreational set-asides to 

further ensure that recreational 

participants are provided an equitable 

opportunity to harvest a portion of the 

Angling category quota. 

Response: NMFS has modified the 

selected alternative, F4, from the Draft 

Consolidated HMS FMP by removing 

the proposal to eliminate the North/ 

South Angling category dividing line 

and thereby maintaining the status quo 

regarding this recreational management 

tool. 

NMFS acknowledges the recreational 

fishery supports the North/South line 

for a variety of socio-economic reasons. 

Based on the social and economic 

impacts associated with the status quo 

alternative, NMFS prefers retaining the 

North/South line at this time. However, 

for this management tool to be most 

effective, NMFS requires real-time BFT 

landings data from the recreational 

sector. To date, compliance with the 

recreational Automated Landing 

Reporting System (ALRS) has been low, 

thus hindering the real-time 

effectiveness of this management tool. If 

compliance with the ALRS 

requirements increases or, as 

recreational catch monitoring programs 

are improved over time, the 

effectiveness of this management tool 

may increase. 

Comment 12: NMFS received two 

comments regarding the clarification of 

the school size-class BFT tolerance 

calculation. One comment supported 

the selected alternative that will 

calculate the school size-class tolerance 

amount prior to accounting for the NED 

set-aside quota because it brings the 

calculation more in line with the ICCAT 

recommendation regarding school sizeclass BFT tolerances. The second 

comment stated there was no 

recreational input when the tolerance 

limit was implemented, and the 

tolerance limit should be 15- or 16–

percent of the total quota. 

Response: This rule will clarify the 

procedure NMFS uses to calculate the 

ICCAT recommended 8 percent 

tolerance for BFT under 115 cm (young 

school and school BFT), thus 

implementing the ICCAT 

recommendation more accurately based 

on the specific language contained in 

the recommendation. Regarding the 

comment stating a lack of recreational 

input in developing the 8 percent 

tolerance limit for the smaller size 

classes of BFT, ATCA authorizes 

domestic implementation of ICCATadopted management measures, and 

provides that no U.S. regulation may 

have the effect of either increasing or 

decreasing the quota or fishing mortality 

level adopted by ICCAT. ATCA also 

provides that not more than three 

Commissioners shall represent the 

United States in ICCAT. Of the three 


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U.S. Commissioners, one must have 

knowledge and experience regarding 

recreational fishing in the Atlantic 

Ocean, Gulf of Mexico, or Caribbean 

Sea. In addition, the U.S. 

Commissioners are required to 

constitute an Advisory Committee to the 

U.S. National Section to ICCAT. This 

body, to the maximum extent 

practicable, consists of an equitable 

balance representing the interests of 

various groups concerned with the 

fisheries covered by the Convention, 

including those of the recreational 

community. 

Comment 13: NMFS received a 

number of comments for and against 

implementing a rollover limitation for 

each domestic quota category. Those in 

support of the limitation include: a 

rollover cap should be implemented, 

but the cap should be set lower because 

a rollover of up to 100 percent of a 

category’s baseline allocation could be 

harmful to the fishery in future years as 

it will lead to unsustainable 

overcapitalization; and NMFS must 

develop a way to track size classes of 

BFT entering the Reserve category as a 

result of this cap, so there are no 

conflicts with overall mortality 

estimates. 

Comments in opposition of the 

rollover limitation include: rollover of 

quotas should be eliminated to increase 

conservation; limiting the amount of 

quota that categories can roll over is not 

appropriate at this time; NMFS should 

not get ahead of ICCAT as it 

compromises the U.S. delegation’s 

ability to negotiate multilateral 

implementation in the future; long term 

ramifications of lost quota have not been 

fully explored on both domestic and 

international fronts; and the United 

States should not ask any more of its 

citizens while quota is not harvested, 

and international conservation measures 

are not equivalent. 

Other comments NMFS received 

regarding this issue include: when there 

is surplus quota in commercial 

categories, recreational anglers should 

be permitted to take part of this surplus; 

categories should not be punished or 

rewarded for not harvesting the quota 

until all arbitrary regulations have been 

removed; the Agency needs to proceed 

cautiously with rolling over quota in 

case there is a stock issue; however, the 

United States needs to maintain control 

of the underharvests due to the lack of 

conservation of other member nations; 

rollovers from the previous fishing year 

should be accessible in the January time 

period if the selected alternative to 

change back to a calendar year is 

implemented; uncaught sub-period 

quota should be rolled forward to allow 

for year-round General category 

landings. If the fishing year is changed 

to January 1, then any prior year’s 

uncaught quota should be allowed to be 

caught between February 1 and May 31; 

implementing a domestic rollover 

limitation would adversely affect our 

ability to negotiate at ICCAT as the 

bottom line remains the same regardless 

of which domestic category the 

underharvest resides in; rollover 

limitations are helpful, however this 

item should be addressed at ICCAT; 

and, the Agency needs to be aware of 

the ripple effects quota rollovers have 

on business planning late in the season. 

Response: This rule authorizes NMFS 

to limit the amount of BFT quota that 

may be carried forward from one fishing 

year to the next. By establishing a 

limitation that may be imposed on each 

domestic quota category, except the 

Reserve, NMFS will be better equipped 

to address quota stockpiling situations if 

they arise. This rule will not preclude 

inseason quota transfers to any of the 

domestic quota categories if warranted. 

Due to the different size classes that 

each category may target, the number of 

BFT per metric ton may differ; therefore 

the origin of the quota entering the 

category must be noted, to ensure 

mortality levels are consistent with 

those accounted for in the stock 

assessment. This rule will have minimal 

conservation benefits on the Western 

Atlantic BFT stock as a whole. NMFS 

supports an international discussion on 

the use of rollover caps, as well as their 

pros and cons. Implementing the 

potential use of a cap domestically 

should not adversely affect the U.S. 

delegation’s ability to negotiate and play 

a strong role on this issue as U.S. BFT 

quota levels will remain consistent. 

Comment 14: NMFS received 

comments supporting the consolidation 

of the inseason action determination 

criteria. These comments consisted of: 

revising and consolidating the criteria 

for BFT management actions improves 

the agency’s flexibility and consistency 

in making determinations; and the 

preferred alternative should be selected, 

however, it needs to be clarified if the 

criteria have a different ranking of 

importance. 

Response: Consolidating and refining 

the criteria that NMFS must consider 

prior to conducting any inseason, and 

some annual, actions will assist in 

meeting the consolidated HMS FMP’s 

objectives in a consistent manner, 

providing reasonable fishing 

opportunities, increasing the 

transparency in the decision making 

process, and balancing the resource’s 

needs with users’ needs. The criteria 

listed are in no particular order of 

importance and will be fully 

considered, as appropriate, in making a 

determination; however, in some 

circumstances, not all criteria will be 

relevant to the decision making process. 

Comment 15: NMFS received a 

number of comments that did not 

directly address the actions being 

proposed in the Consolidated HMS 

FMP, but are more general in nature or 

are more pertinent to the recently 

proposed 2006 Atlantic BFT Quota 

Specification and effort controls. These 

comments consist of: the maximum 

three fish per day General category bag 

limit should be eliminated. Flexibility 

to set the bag limit higher may be 

needed as the fishery evolves and to 

allow for the possibility of a distant 

water General category fishery; NMFS 

should relax the ‘‘tails on tuna’’

requirement. The tail is not necessary 

for species identification. This 

requirement prevents higher quality 

cleaning and storage at sea. Many years 

of data confirm that prohibited 

undersized tunas are either not 

encountered or are extremely rare in 

this fishery. ICCAT has eliminated the 

minimum size for some Atlantic tunas. 

The tails on requirement is an 

unnecessary and costly burden that 

should be removed; NMFS is using 

RFDs to deny fishermen a reasonable 

opportunity to catch the quota and to 

make U.S. fishermen do more to 

conserve BFT than fishermen from other 

countries with ICCAT BFT quotas. 

NMFS should not implement RFDs 

unless the General category quota is in 

immediate danger of being exceeded. 

NMFS should remove every domestic 

restriction that denies U.S. fishermen a 

reasonable opportunity to catch the 

quota. 

Response: This action does not 

address these specific items, however, 

the 2006 Atlantic BFT quota 

specifications and effort controls 

address retention limits, as well as the 

use of RFDs in the coastwide General 

category. The final initial 2006 

specifications published on May 30, 

2006 (71 FR 30619). Regarding the 

removal of tuna tails, NMFS has 

received past comments from the 

industry, particularly the HMS CHB 

sector, to investigate this possibility. 

However, the proposal to process HMS 

at sea may compromise enforcement of 

domestic size limits. To date, NMFS has 

been able to enforce the domestic size 

limits for HMS through curved 

measurements, which requires the tail 

remain on the fish. This has been an 

efficient and effective way of enforcing 

size limits. 

Comment 16: NMFS received 

comments requesting changes in the 


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allowable use of harpoons on CHB 

vessels. These comments include: 

NMFS should authorize the use of 

harpoons as primary gear to target giant 

BFT from the pulpit of CHBs to allow 

maximum flexibility. With the cost of 

doing business rising daily and the 

fishery changing dramatically over the 

past few years, this antiquated 

prohibition needs to be modified to 

allow CHB operators the opportunity 

and versatility to harpoon BFT on days 

that they are not carrying paying 

passengers. This rule was originally 

written to curb the sale of undersized 

BFT, which is no longer an issue. 

Response: In 1993, NMFS created a 

recreational Atlantic tunas permit that 

was required for CHB or privately 

operated vessels targeting any of the 

regulated Atlantic tuna species. This 

rulemaking also established a list of 

allowable gears that can be used to 

harvest tunas. In 1995, NMFS removed 

the ability for vessels to hold more than 

one permit at a time. In that 1995 

rulemaking, NMFS proposed, collected 

comments on, and finalized a list of 

authorized gears for the CHB sector of 

the fishery. Harpoons were not 

proposed as an authorized gear, nor 

were any comments received requesting 

this gear type be authorized for CHB 

vessels at that time; therefore, harpoon 

gear was not listed as an authorized 

primary gear type. As NMFS has 

conducted a number of rulemakings 

regarding permits, permissible gears, 

and targeted species, NMFS intends to 

conduct a comprehensive rulemaking 

regarding all HMS permits that could 

include, among other things, further 

rationalizing some segments of the HMS 

fisheries or restructuring the permit 

process (gear-based, species-based, or 

both). This future rulemaking may be 

better suited to address further revisions 

to authorized gears and the permitting 

structure for managed HMS. The issue 

of allowing the use of various gears to 

subdue HMS caught on authorized 

primary gears was analyzed in the Final 

Consolidated HMS FMP. Please refer to 

discussions of Authorized Fishing Gear. 

B. Timeframe for Annual Management 

of HMS Fisheries 

Comment 1: Public comments 

expressed both support and opposition 

for administratively adjusting all HMS 

fisheries to a calendar year. Commenters 

asked the following: what has changed 

since fisheries were originally shifted 

from a calendar year; Is the United 

States in compliance with ICCAT 

reporting requirements using a fishing 

year? Several commenters stated that 

use of a fishing year was not a 

disadvantage at ICCAT. 

Response: This rule will adjust tuna, 

swordfish, and billfish fisheries so that 

all HMS fisheries occur on a calendar 

year. The previous shift from a calendar 

year to a fishing year (1996 for 

swordfish, 1999 for tuna and billfish) 

accommodated domestic markets for 

swordfish and provided additional time 

for rulemaking to implement ICCAT 

recommendations, since ICCAT 

traditionally meets in November of each 

year. Use of a fishing year is allowed by 

ICCAT. Since the fishing year was 

implemented for these species, several 

aspects of the fisheries and their 

management have changed. For the past 

several years, the U.S. has not fully 

harvested its swordfish quota, and has 

carried over quota underharvest from 

one year to the next. Because of this 

underharvest, summer swordfish 

markets have not been limited by the 

amount of quota available, and starting 

the fishing year in early summer to 

avoid quota shortfalls has been 

unnecessary. In addition, after several 

years of experience with ICCAT 

negotiations since the U.S. implemented 

the fishing year, NMFS and the U.S.’s 

ICCAT delegation have found 

misunderstanding regarding data 

alignment over time periods 

unnecessarily confuses decisions, 

negotiation, and ultimately enforcement 

of ICCAT recommendations. Adjusting 

tuna, swordfish, and billfish fisheries to 

a calendar year will increase 

transparency in U.S. data and statistics, 

and help focus on achieving domestic 

and international fishery management 

objectives such as reducing/eliminating 

IUU fishing. 

Comment 2: Commenters expressed 

concern about the timely 

implementation of ICCAT 

recommendations under a calendar 

year, the potential disadvantage to U.S. 

fishermen if ICCAT recommendations 

were not implemented in a timely 

fashion, and the need for fishery 

specifications to be available prior to the 

start of calendar year fisheries. 

Response: NMFS recognizes that 

switching back to a calendar year will 

reduce the amount of time between the 

adoption of ICCAT recommendations in 

November and the start of calendar year 

fisheries on January 1. This HMS FMP 

will adjust the process for issuing 

annual BFT specifications by 

consolidating the analysis in the FMP 

itself, and thus reducing the annual 

burden and associated amount of time 

necessary for promulgation of the 

annual specifications. NMFS anticipates 

that BFT specifications will usually be 

issued on time using these newly 

adopted procedures. Although ICCAT 

recommendations that can adjust quotas 

may be adopted at any time, usually 

such adjustments occur after stock 

assessments, which are performed at 

several year intervals. Thus, on average, 

more complex rulemakings are 

anticipated to occur less frequently. 

NMFS notes that rulemakings that 

adjust quotas or implement other 

significant changes in fishery 

management programs usually require 

more than the amount of time (e.g., 

seven months) that would have been 

available between adoption of a 

recommendation at ICCAT and start of 

the fishing year, if fisheries had been 

maintained on a fishing year schedule 

rather than adjusted to a calendar year. 

Comment 3: Commenters opposed the 

adjustment to a calendar year because of 

potential socio-economic impacts of a 

shift to calendar year in combination 

with the proposed ICCAT 250 marlin 

limit, particularly for billfish 

tournaments. Commenters stated the 

following: a basic analysis 

demonstrating the economic importance 

of billfish tournaments should be 

included, and millions of dollars of 

prize money is missing from the current 

analysis; what is the impact if a large 

tournament that happened later in the 

year was restricted to catch and release 

fishing only; and, it appears that 

adjusting all HMS fisheries to a fishing 

year will socio-economically benefit 

most HMS fisheries. 

Response: The HMS FMP identifies 

that the potential for reaching the 

ICCAT marlin 250 limit is low and 

subsequent prohibition of marlin 

landings unlikely. Over the past several 

years, U.S. billfish landings have only 

been attained in a single year. In 

addition, the FMP includes a measure 

that will allow increases in size limits 

as a means of reducing landings to avoid 

attaining the limit and implementation 

of catch and release fishing only. 

Despite the limited potential for 

reaching the limit, the Consolidated 

HMS FMP analyzes potential impacts 

should the limit be attained, using the 

worst case scenario that tournaments 

would be cancelled if the limit were 

attained. This analysis indicates that 

socio-economic impacts could be higher 

under a calendar year scenario. These 

impacts could be mitigated if 

tournaments required catch and release. 

On balance, NMFS anticipates that the 

benefits, as described in Chapter 4 of the 

HMS FMP and in the response to 

Comment 1 of this section, provided by 

switching to a calendar year and other 

regulatory adjustments set forth in the 

Consolidated HMS FMP will outweigh 

potential negative impacts. NMFS did 

not identify, nor did commenters 

provide, any positive socio-economic 


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impacts for switching the shark fishery 

to a fishing year. Impacts of concern for 

ICCAT managed fisheries (e.g. tuna, 

swordfish, and billfish) are discussed in 

the response to Comment 1 of this 

section. 

Comment 4: Several commenters 

questioned the effect of a change to 

calendar year on the January General 

category BFT fishery, particularly the 

disposition of quota underages that may 

have occurred in the previous calendar 

year. Commenters stated the following: 

I oppose a shift to calendar year because 

of the potential negative impacts to 

southeastern fishermen; and, I support a 

roll-over provision from December to 

January similar to the rollover provision 

that exists between sub-periods during a 

fishing year. 

Response: The HMS regulations at 50 

CFR 635.27(a)(1) divide the General 

category quota into three subperiods 

including June through August, 

September, and October through 

January. These regulations further state 

that NMFS will adjust General category 

subperiod quotas based on under- or 

overharvest during the previous 

subperiod. Currently, the last subperiod 

spans the winter south Atlantic BFT 

fishery which usually begins in 

November and continues until the 

General category closes (at the latest on 

January 31). Under the Consolidated 

HMS FMP, these subperiods will be 

adjusted so that the winter fishery will 

include separate subperiods in 

December and January, each of which 

occur in a separate fishing year. An 

active fishery did not occur across the 

change of quota years prior to the 1999 

FMP, which originally adjusted the BFT 

fishery to a fishing year. In addition, 

prior to 2003, the BFT fishery rarely 

experienced underharvest and roll-over 

of unharvested quota. Under this 

Consolidated HMS FMP, the January 

subperiod will have a quota of 5.3 

percent of the annual ICCAT allocation. 

In consideration of a potential 

underharvest and rollover of General 

category quota from one calendar year to 

the next (i.e., December to January), 

NMFS has explored various ways to 

manage this situation. A preferred 

approach would depend upon the 

magnitude of the underharvest and the 

needs of the fishery at the time. Several 

potential alternatives regarding the 

disposition of carryover of any under or 

overharvest during the December 

subperiod are discussed in Chapter 4 of 

the Consolidated HMS FMP. In the first 

alternative, any under or overharvest 

could be fully rolled over into January 

of the following fishing year in addition 

to the baseline 5.3 percent. Under this 

scenario, the entire underharvest would 

be added to the January subperiod 

quota, or the entire overharvest would 

be subtracted from the subperiod quota. 

In another potential alternative, 5.3 

percent of the under- or overharvest 

would be applied to the January 

subperiod in addition to the baseline 5.3 

percent. In a third alternative, no underor overharvest would be added or 

subtracted from the January subperiod’s 

5.3 percent allocation. NMFS will work 

with the affected constituents through 

the annual BFT specification process to 

determine the most appropriate 

approach based on constituent needs 

and Federal requirements. 

C. Authorized Fishing Gears 

Comment 1: NMFS received several 

comments in support of and opposed to 

the introduction of new gear. Comments 

supporting the introduction of new 

gears include: expansion of authorized 

gears would be acceptable in 

underexploited fisheries. Gears without 

bycatch problems could improve the 

availability of swordfish to the 

American public; and, gear innovations 

should not be stymied. Comments 

opposed to the introduction of new 

gears include: I am opposed to the 

introduction of any new commercial 

fisheries; do not allow new effective 

gears in fisheries that are undergoing 

rebuilding; do not allow any new gear 

types, especially for BFT; why should 

NMFS authorize new gears?; NMFS has 

reported that all HMS fisheries are fully 

harvested or overfished. NMFS’s 

proposal to legalize new commercial 

gear violates National Standard 1, which 

is to prevent or end overfishing of tuna, 

swordfish, billfish, and sharks; this will 

not permit overfished stocks to rebuild. 

Additional new commercial gear can 

only result in fully harvested HMS 

becoming overfished; we do not support 

allowing new gears into overfished 

fisheries except for use as experimental 

fishing permits; NMFS proposes to 

authorize new commercial gear types 

that can only increase the harvest of 

HMS; and there is a lot of resistance to 

new gears in the Gulf of Mexico. 

Response: As current or traditional 

gears are modified and new gears are 

developed, NMFS needs to be cognizant 

of these advances to gauge their 

potential impacts on target catch rates, 

bycatch rates, and protected species 

interactions, all of which can have 

important management implications. 

While NMFS needs to evaluate new and 

innovative gears and techniques to 

increase efficiency and reduce bycatch 

in fisheries for Atlantic HMS, the 

Agency did not select any new fishing 

gears for the HMS commercial fisheries 

at this time. Further, this action will not 

authorize any new gears for the bluefin 

tuna commercial or recreational 

fisheries. 

In this action, NMFS considered the 

definition and authorization of speargun 

gear, green-stick gear, and buoy gear, as 

well as the clarification of the allowable 

use of secondary gears (also known as 

cockpit gears). At this time, NMFS is 

authorizing only one new gear for the 

HMS fisheries, recreational speargun 

fishing for Atlantic BAYS tunas. NMFS 

does not believe that the addition of 

speargun fishing for Atlantic BAYS 

would disrupt existing rebuilding plans 

for overfished BAYS tunas given the 

current number of participants in the 

recreational Atlantic tuna fishery 

relative to the expected number of 

spearfishermen. Additionally, taking 

into account the estimated low 

encounter rates for target species using 

speargun fishing gear, the additional 

anticipated effort from spearfishermen 

will likely result in minimal increased 

landings compared with the landings by 

current Angling and CHB category 

participants. A limited number of 

additional individual fishermen are 

expected to use this gear type, and 

spearfishermen may actually fish for 

months or years without having an 

opportunity to spear a tuna. All sale of 

tuna harvested with recreational 

speargun fishing gear will be prohibited 

in order to clarify the intent of 

authorizing this gear type, which is to 

allow a small group of fishermen an 

opportunity to use spearguns to 

recreationally target BAYS tuna. BFT 

are excluded from the list of allowable 

target species for speargun gear due to 

the recent declining performance of the 

existing BFT fishery, recent quota 

limited situations within the BFT 

Angling category, and ongoing concerns 

over stock status. 

The selected buoy gear alternative 

will not authorize a new gear; rather, it 

will rename the handline fishery for 

commercial swordfish and limit the 

number of gears deployed in this 

fishery. Defining ‘‘buoy gear’’ was 

necessary because the Final 

Consolidated HMS FMP will also 

modify the ‘‘handline’’ definition to 

require that the gear be attached to a 

vessel. Therefore, under the selected 

alternative, the commercial swordfish 

handgear fishery will be the only fishery 

where free-floating handlines, now 

referred to as buoy gear, will be 

authorized. Under this rule, buoy gear 

fishermen will be limited to possessing 

or deploying no more than 35 floatation 

devices, with no more than two hooks 

or gangions attached to each individual 

gear. Prior to this action, buoy gear had 

been utilized with no limit on the 


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number of gears deployed, as long as 

each gear had no more than two hooks 

attached and it was released and 

retrieved by hand. Also, both 

recreational and commercial fishermen 

were able to use this gear in areas closed 

to PLL gear. Under the selected 

alternative, buoy gear will be prohibited 

for use by all commercial fishermen 

without a swordfish handgear or 

directed limited access permit and by 

all recreational fishermen. Additionally, 

when targeting swordfish commercially, 

the number of individual gears a vessel 

may possess or deploy will be limited 

to no more than 35. Vessels with 

directed swordfish or swordfish 

handgear LAPs may use this gear type 

to capture swordfish in pelagic longline 

closed areas, provided all longline gear 

has been removed from the vessel. 

While buoy gear will be allowed in the 

Gulf of Mexico, the swordfish handgear 

fishery does not appear to be 

widespread and operates primarily off 

the East Coast of Florida, according to 

public comment. 

Based on public comment, the Agency 

prefers to clarify the authorized 

configuration of green-stick gear, rather 

than proceed with authorization and 

definition of the gear-type that may 

further add to the confusion and have 

unintended negative consequences to 

the fishery and resource. Public 

comments were opposed to and 

supported authorizing green-stick gear 

for the commercial harvest of Atlantic 

BAYS tunas; expressed considerable 

confusion over the current regulatory 

regime; were concerned about the need 

for better reporting, monitoring, and 

overall data collection for this gear-type; 

and expressed a need to further 

understand the gear’s technical nature. 

Comment 2: Commercial HMS 

handline gear, buoy gear, and greensticks should be prohibited in the closed 

areas. 

Response: The current HMS closed 

areas were specifically developed for a 

particular gear type (e.g., PLL or BLL) to 

reduce bycatch and discards. At this 

time, there are no time/area closures for 

buoy and handline gear. If a green-stick 

is configured with more than two hooks, 

then it would meet the definition of 

‘‘longline,’’ and thus, would also be 

prohibited from certain closed areas. If 

future data indicate that the bycatch 

rates of these gears are high, NMFS 

would consider closing certain areas, or 

other management measures, to 

minimize bycatch and bycatch 

mortality, to the extent practicable. 

Comment 3: NMFS received a 

comment concerned about the bycatch 

associated with the introduction of new 

gears. Those comments include: small 

tuna fisheries, like NMFS is trying to 

promote with the handline, buoy, and 

green-stick fisheries, will negatively 

affect marlin stocks because they target 

marlin prey species; and, were any 

bycatch analyses conducted for the 

proposed authorized gears? 

Response: This action will not change 

the currently allowed and authorized 

use of green-stick gear in any HMS 

commercial fishery. This action 

distinguishes between handlines and 

buoy gear, such that handlines must be 

attached to the vessel and buoy gear will 

be allowed to float freely; however, both 

handlines and buoy gear were 

authorized and used in HMS fisheries 

commercially and recreationally prior to 

this action. The rule limits buoy gear 

usage to the commercial swordfish 

fishery for individuals with a swordfish 

handgear or directed limited access 

permit. No HMS other than swordfish 

may be harvested with buoy gear. 

Because swordfish is not a marlin prey 

species, the Agency does not believe 

buoy gear will have a negative impact 

on marlin stocks. No bycatch analyses 

are available for handline or buoy gear, 

but data from the logbooks were 

reviewed. The HMS logbook does not 

distinguish between attached and 

unattached handlines, so specific 

information on unattached handline (or 

buoy gear) catch is limited. In general, 

the HMS commercial handline fishery 

has relatively few discards. While there 

are no bycatch analyses available for 

recreational speargun fishing, public 

comment suggests that the number of 

individuals using this gear will be small 

and those that do use the gear expect 

low encounter rates with target species. 

According to public comment, this 

fishery is highly selective and the gear 

has been designed to retain speared fish 

and reduce fish loss. With the 

authorization of this gear for the 

recreational harvest of BAYS tunas only, 

information about speargun catch will 

be captured via the MRFSS and LPS. 

Comment 4: NMFS should clarify the 

HMS authorized gear regulations to 

allow for gear stowage provisions. Such 

provisions would enable vessels to 

diversify, and would also provide 

vessels with the ability to operate in 

other fisheries. The Northeast gear 

stowage provision needs to be 

acknowledged in the HMS regulations. 

Response: A gear stowage provision 

for HMS permitted vessels was not 

considered in this action and, therefore, 

is not authorized at this time. NMFS has 

concerns about the enforceability of 

such a provision in HMS closed areas. 

The Agency would appreciate 

additional comments on situations 

where gear stowage provisions are 

necessary, as well as for which 

particular gears and areas. A gear 

stowage provision may be considered in 

a future rulemaking, if appropriate. 

Comment 5: NMFS received 

comments from individuals concerned 

about the use of gillnets in HMS 

fisheries. These comments include: the 

Georgia Coastal Resources Division 

supports the removal of shark gillnet 

from the list of authorized HMS gear; 

and, gillnets should not be an 

authorized gear, particularly sink 

gillnets due to interactions with 

protected resources and other bycatch. If 

NMFS is going to continue to allow 

gillnets, the vessels should be required 

to use VMS year round. 

Response: NMFS considered 

prohibiting the use of shark gillnet gear 

as part of a range of commercial 

management measures to prevent 

overfishing of finetooth sharks, but did 

not pursue this option because finetooth 

sharks would continue to be discarded 

dead in other non-HMS fisheries, and 

thus, the prohibition would not likely 

prevent overfishing. In this action, 

NMFS will require shark gillnet vessel 

owners and operators to attend the 

protected species safe handling and 

release workshop and obtain 

certification. The goal for this workshop 

will be to reduce the mortality of sea 

turtles, smalltooth sawfish, and other 

protected species. At this time, vessels 

issued a directed shark LAP with a 

gillnet on board that are away from port 

during the right whale calving season 

must have VMS on board. This action 

did not consider expanding this 

condition to require VMS on shark 

gillnet vessels year round. 

Comment 6: There is confusion 

regarding the proposed gears. The 

process needs to slow down, and we 

need to make sure we understand what 

our goal is. We should be encouraging 

innovation. Each gear needs to be 

reviewed to determine where each gear 

appropriately fits; the public is going to 

need more education on the proposed 

gears and associated requirements. The 

Agency needs to clarify before 

authorizing; and, the language in the 

alternatives needs to be looked at, it 

appears some alternatives are allowing 

use to continue and others are allowing 

its entry. 

Response: While NMFS encourages 

the use of clean and efficient gears, this 

action will authorize the use of only one 

new gear type due to the stock status of 

several HMS. Speargun fishing gear will 

be authorized only for permit holders 

with HMS Angling category or HMS 

CHB cateogry permits and users will be 

allowed only to target Atlantic BAYS 

tunas recreationally. It will not be 


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authorized for BFT, or any other HMS. 

The sale of BAYS speared by speargun 

gear is not allowed. The selected 

alternative for buoy gear will not be an 

introduction of new gear, rather a 

clarification of an existing gear and a 

restriction on the number of floatation 

devices used in the existing commercial 

swordfish handgear fishery. In an effort 

to reduce confusion and increase 

compliance, NMFS will modify the 

HMS compliance guide and other 

outreach materials to reflect these 

changes to the HMS authorized gears. 

Comment 7: NMFS must clarify that 

a longline vessel is allowed to use the 

following fishing gears when not 

longline fishing: handgear including, 

harpoon, handline, and rod and reel 

(plus the green-stick method, if 

authorized). 

Response: The HMS regulations at 

§ 635.21(e)(1) state that if an Atlantic 

BFT is retained or in possession, the 

vessel may employ only the gear 

authorized for the particular Atlantic 

tunas or HMS permit category issued to 

the vessel. In other words, with a BFT 

on board and an Atlantic Tunas 

Longline permit issued to the vessel, 

only longline gear may be possessed or 

employed. When fishing for Atlantic 

BAYS tunas, the vessel may employ 

fishing gear authorized for any Atlantic 

Tunas permit category. The two 

exceptions are that purse seine gear may 

be used only on board vessels permitted 

in the Purse Seine category and pelagic 

longline gear may be used only on board 

vessels issued an Atlantic Tunas 

Longline category tuna permit as well as 

LAPs for both swordfish and sharks. 

When targeting Atlantic BAYS tunas 

with an Atlantic Tunas Longline permit, 

a vessel may use handgear (i.e., 

harpoon, handline, rod and reel, and 

bandit gear) provided BFT are not in 

possession or retained on board the 

vessel. However, the vessel must 

possess all applicable and valid Federal 

permits, possess the safe-handling and 

release placard and equipment, and 

abide by the longline gear restrictions 

(e.g., closed areas and circle hooks). If 

a vessel is fishing in a closed area and 

has longline gear on board, it is a 

rebuttable presumption that longline 

gear was used to catch any fish on board 

that vessel. Green-stick and rod and reel 

gear may be utilized on a pelagic 

longline vessel, so long as all other PLL 

management measures are adhered to, 

including the use of circle hooks. 

i. Spearfishing 

Comment 8: NMFS received 

numerous comments supporting the 

authorization of speargun gear in the 

recreational Atlantic tuna fishery, 

specifically alternative H2, which 

would authorize speargun fishing gear 

in the recreational Atlantic tuna fishery. 

The comments include: authorizing 

speargun fishing gear for Atlantic tunas 

would provide very high economic 

benefits and produce very low 

ecological impacts; the impact of tuna 

spearfishing would be minimal and the 

number of participants would be low; 

spearfishermen were left out of the List 

of Fisheries for tunas and sharks when 

initially established; and, a speargun 

fisherman can choose his target, assess 

his chances, and be more discriminate 

in his hunting, which is not something 

a hook and line fisherman can do. 

Comments received in support also 

stated affirmation that recreational 

divers would be allowed to be 

transported to the site by a charter dive 

boat; and, the tuna regulations would 

allow the taking of tuna in the Atlantic 

with handheld, rubber band or 

pneumatic power spearguns by 

recreational fishermen while 

underwater. 

Response: This rule will authorize the 

use of spearguns in the recreational 

Atlantic BAYS tuna fishery. Holders of 

recreational HMS Angling and HMS 

CHB permits will be allowed to carry 

spearguns and fish for, retain, and 

possess any of the BAYS tunas using 

speargun gear. Speargun gear will not be 

authorized under any other HMS or 

Atlantic tuna vessel permit or for any 

other HMS species. Speargun gear will 

not be authorized to fish for, retain, or 

land Atlantic BFT. BAYS tunas killed 

and landed with the use of speargun 

gear may not be sold under any 

circumstances, including by owners, 

operators, or participants on HMS CHB 

vessels. Fishermen using speargun 

fishing gear will be allowed to freedive, 

use SCUBA, or other underwater 

breathing devices, and will be required 

to be physically in the water when they 

fire their speargun. Only free-swimming 

fish, not those restricted by fishing lines 

or other means, may be taken. The use 

of powerheads, or any other explosive 

devices, will not be allowed to harvest 

or subdue BAYS tunas with this gear 

type. In addition, spearfishermen will 

be required to abide by all existing 

recreational management measures 

under the Angling category regulations 

when recreationally fishing for BAYS 

tunas (i.e., minimum size requirements 

of 27 inches curved fork length for BET 

and YFT, three YFT retention limit per 

person per day, as well as all current 

state and Federal reporting 

requirements). 

Comment 9: NMFS received several 

comments that supported spearfishing 

gear but requested allowing its 

expansion beyond recreational tuna 

fishing while other comments supported 

additional restrictions. Comments in 

support of expansion include: adding 

spearguns as an allowed gear for sharks; 

and, all HMS fisheries should 

eventually open to spearfishing. The 

GMFMC specifically supported 

spearfishing as an approved gear for all 

HMS fisheries, including sharks, and 

recommended that the gear be 

authorized for recreational and 

commercial harvest. In contrast, other 

comments supported restricting the use 

of spearguns as proposed, stating no sale 

should be allowed for anyone when a 

tuna is harvested with a speargun under 

any circumstances, and speargun 

fishermen should not be allowed to sell 

tuna catches from CHB vessels as 

proposed. A commenter stated his 

concern that the ability to sell fish might 

be viewed as an impediment to allow 

participation in this fishery and, thus, 

NMFS should not allow sale of fish to 

avoid jeopardizing any chance of 

authorizing recreational use of speargun 

fishing gear. NMFS also received 

comments to further restrict the use of 

speargun fishing gear to allow only 

freedivers to harvest tuna (i.e., not allow 

SCUBA gear) consistent with original 

public comment on use of this geartype. 

Response: This rule will authorize the 

use of spearguns in the HMS 

recreational fishery only for Atlantic 

BAYS tunas. This measure will provide 

speargun fishermen an opportunity to 

use this gear-type and will increase the 

social and economic benefits for this 

user-group. While providing this 

opportunity, NMFS is also balancing 

concerns of introducing a new gear type 

in fisheries with considerable numbers 

of existing fishermen participating in 

exploited fisheries. Since publication of 

the list of authorized gears and fisheries 

and the 1999 FMP, spearfishermen have 

consistently argued for access to HMS 

fisheries. Spearfishermen have argued 

in particular for recreational access to 

the Atlantic tuna fishery to target big 

tuna for the social and recreational 

opportunity rather than the desire for 

economic gain. This rule will prohibit 

the sale of Atlantic BAYS tunas 

captured by speargun to minimize the 

possibility of additional expansion of 

the user-group to those interested in 

commercial gain from the activity and 

inconsistent with intent of the selected 

alternative. Spearguns will not be 

allowed to target BFT, primarily due to 

the depleted status of the western 

Atlantic stock, uncertainty over the 

status of the stock, and continuing poor 

performance of the fishery. The use of 


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spearguns in HMS fisheries other than 

the Atlantic tuna fishery, (i.e., shark, 

billfish or swordfish fishery) was not 

considered in the Draft Consolidated 

HMS FMP, although as these stocks 

improve some additional fishing 

opportunities for new and efficient geartypes may be considered in the future. 

NMFS considered further restricting 

speargun activity to only free-divers, 

(i.e., no SCUBA gear or other types of 

underwater breathing apparatus) to 

further limit the universe of 

participants. Free-divers were the 

original group of speargun fishermen 

who had requested the opportunity to 

participate in the recreational tuna 

fishery. However, it was determined 

that not allowing SCUBA gear would 

have raised additional safety concerns. 

Comment 10: NMFS received several 

comments regarding aspects of speargun 

fishing that would keep participation 

and catch low. Those comments 

include: technical knowledge barriers 

for a novice and inexperienced 

individual that wishes to engage in this 

activity; harvesting two or three tunas in 

a lifetime would be lucky because a 

speargun fisherman needs to know what 

they are doing and where to go fishing; 

there are not a lot of opportunities to 

learn how to spear BAYS tuna; the cost 

of the equipment including the initial 

cost of upgrading spearfishing gear (e.g., 

larger gun, shafts, spearpoints, floats, 

lines, and safety items) will exceed 

$3,000 and that is before chartering a 

vessel; and the need to use a boat to 

access BAYS fishing grounds. 

Response: NMFS acknowledges that 

the number of participants using 

spearguns in a recreational BAYS tuna 

fishery is likely to be low and the 

number actually encountering and 

successfully striking a BAYS tuna lower 

still. NMFS understands that the 

primary intent of allowing the use of 

spearguns in the recreational BAYS tuna 

fishery is to allow participants the 

opportunity and access to the fishery for 

the recreational and social benefits it 

affords. Successful participation would 

still mean adequate preparation and/or 

possible training (e.g., dive certificate) 

and the correct equipment. However, 

willing participants will no longer be 

prohibited by regulation from using 

spearguns in the recreational BAYS 

fishery. 

Comment 11: NMFS received 

comments related to the level of bycatch 

associated with speargun fishing. Those 

comments include: most recreational 

fishermen practice catch-and-release 

fishing, but speargun fishermen practice 

release-and-catch fishing; speargun 

fishermen are very selective about the 

fish being targeted and use one shot, 

usually resulting in no bycatch; and 

spearfishermen can see the fish and do 

not take unwanted species or 

undersized fish; and they leave no lines 

or other gear on the bottom to snag other 

fish, lobster, or turtles. A few comments 

stated concerns that some spearguns 

under this gear type may not have the 

capability to land large HMS, resulting 

in a source of unreported mortality and 

that spearing a fish that dies without 

being harvested would be considered 

bycatch. 

Response: There are minimal data 

available to support or refute concerns 

regarding bycatch by spearguns in the 

BAYS fisheries. It is evident that the 

nature of the gear-type can be highly 

selective and targeted to specific fish, 

unlike traditional hook-and-line fishery. 

Spearfishermen are unlikely to injure 

other species such as HMS, sea turtles, 

or marine mammals as they can 

selectively target their catch. However, 

it remains unknown how many strikes 

of targeted BAYS may result in 

mortality and retention versus 

wounding and subsequent escape with 

some unknown proportion mortally 

wounded. Public comment by 

spearfishermen states that it is possible 

to accurately identify species and size 

class before firing the spear and thus the 

bycatch and mortality of incorrect 

species (e.g., BFT) or undersized tuna 

(i.e., less than 27 inches) should be 

minimal. 

Comment 12: NMFS received several 

comments regarding potential gear and 

user conflicts that may arise with the 

authorization of speargun gear such as: 

nothing prevents divers from dropping 

a dive flag in the middle of a group of 

rod and reel vessels or on a specific 

wreck, and driving rod and reel vessels 

off the fish/wreck. In contrast, other 

commenters noted that spearfishermen 

and diver interactions with boat traffic 

should not be an issue in offshore 

fisheries, as it can be in inshore waters, 

that the spearfishing community has 

taken as many precautions as possible, 

and that no accidents have occurred in 

New Hampshire or Rhode Island where 

speargun fishing gear is currently 

allowed in state waters when targeting 

striped bass. 

Response: Speargun users and rodand-reel recreational fishermen will 

need to respect each other’s activities 

and safety when sharing the same 

fishing grounds to avoid gear and user 

conflicts. Speargun fishermen will 

likely choose fishing areas and tuna 

hunting grounds away from other rodand-reel vessels to maximize the diver’s 

recreational opportunity and minimize 

safety concerns. Likewise, under 

existing vessel safety regulations (see 33 

CFR Subchapter E and the U.S. Coast 

Guard Navigational Rules), recreational 

vessels must give adequate berth to 

dive-flags in the water and vessels flying 

diving signals. 

Comment 13: NMFS received several 

comments on the economic benefits 

associated with speargun fishing. These 

comments include: allowing 

recreational speargun fishing for tuna 

would create an economic boost to 

coastal communities. When 

spearfishing, one would usually fill up 

the car with gas, have lunch, buy 

souvenirs or gear, and sometimes pay 

for a boat ride and not spear many fish; 

and, at the 4th Annual Hatteras Blue 

Water Open this year, there were 50 

entrants from all over the world and 

eight charter vessels generating $60- 

$75,000 in revenue to the area in four 

days and there would have been more 

participants if tunas were included. 

Response: It is expected that allowing 

spearguns into the recreational tuna 

fishery will provide an economic benefit 

to the fishery even though the actual 

sale of landed BAYS tuna will be 

prohibited. Recreational speargun 

fishermen are likely to invest in fishing 

stores and dive-shops for appropriate 

gear and contribute to local economies 

by renting hotel rooms and chartering 

vessels or renting equipment, etc. 

Comment 14: NMFS received 

comments stating that if spearfishing 

gear is allowed to harvest Atlantic 

tunas, then the Agency must devise and 

implement mandatory permitting, 

reporting, monitoring, and enforcement. 

One comment specifically stated that if 

NMFS cannot guarantee this, there 

should not be an additional 

uncontrollable fishery. 

Response: All HMS recreational 

spearfishing activity must be conducted 

from a federally permitted HMS Angling 

or HMS CHB category vessel. NMFS 

currently requires mandatory reporting 

of all recreational landings of BFT, 

swordfish, and billfish via automated 

telephone systems. Although the 

Agency does not currently have similar 

requirements for recreational landings 

of BAYS tunas, NMFS monitors HMS 

recreational effort and landings through 

Federal recreational surveys, such as the 

MRFSS and LPS in addition to State 

monitoring programs. NMFS 

enforcement works in cooperation with 

local and State enforcement programs to 

ensure compliance with management 

measures in both recreational and 

commercial fisheries. NMFS will 

monitor compliance with reporting 

requirements and may consider 

modifications to requirements, as 

appropriate, in the future. 


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Comment 15: NMFS received a 

comment stating that there are 

fishermen currently using spearguns to 

harvest YFT that do not realize it is 

illegal to use the gear to target Atlantic 

tunas. Spearfishing has been included 

as a category in some of the 

tournaments. 

Response: Until the final rule 

authorizing recreational speargun 

fishing for BAYS tunas takes effect, any 

use of spearguns to fish for any HMS is 

illegal. The list of authorized gears has 

been published since the end of 1999 

(December 1, 1999; 64 FR 67511) and 

numerous brochures and guides that 

have been published since that date 

clearly specifying the authorized gears 

for HMS with valid permits. Currently, 

speargun gear is not an authorized gear 

for any HMS. After the effective date of 

this final rule, speargun gear will be 

legal for BAYS tunas, but not for other 

HMS. 

Comment 16: NMFS should not allow 

another directed commercial fishery 

(e.g., speargun fishing gear) for giant 

BFT. 

Response: This rule does not 

authorize another directed commercial 

fishery for giant BFT. It does not 

authorize the use of spearguns to fish 

for, retain, or land any Atlantic BFT, in 

either the recreational or commercial 

fishery. 

Comment 17: Speargun fishermen 

would want to target the largest fish 

available due to the difficulty in taking 

smaller fish, the trophy nature of the 

fishery itself, and the largest take for 

time and money invested in the 

opportunity. 

Response: NMFS recognizes that a 

prime motivation for spearfishermen to 

enter the Atlantic BAYS tuna fishery is 

the opportunity to recreationally fish for 

a big fish. Spearfishermen will need to 

abide by all existing recreational 

management measures, including the 

minimum size for YFT and BET of 27 

inches curved fork length and retention 

limits. There is no minimum size for 

albacore or skipjack tuna. Blackfin tuna 

are not federally regulated. 

ii. Green-Stick Gear 

Comment 18: NMFS received several 

comments supporting the preferred 

alternative to authorize green-stick gear 

for the commercial BAYS tuna fishery. 

These comments include: green-stick 

gear is much better than longlines and 

could be an alternate gear; green-stick 

gear is the most environmentally sound 

way to harvest tuna; if green-stick gear 

is a viable U.S. HMS fishery, then 

NMFS needs to be flexible in allowing 

its use; and, the use of green-stick gear 

for directed fishing by pelagic longline 

vessels when targeting BAYS should be 

approved. In contrast, NMFS received 

several comments opposed to 

authorizing green-stick gear for tunas. 

The GMFMC commented that greenstick gear is classified as longline gear 

in the Gulf of Mexico and if it is 

authorized, it is likely to become very 

abundant and could have a negative 

impact on stressed and overfished 

stocks; green-stick gear is an excuse for 

more longline fishing using a slightly 

different method; and green-stick gear is 

similar to longline gear and therefore 

should not be allowed into closed areas. 

Response: This rule will not provide 

a regulatory definition of ‘‘green-stick 

gear’’ as a separate authorized gear and 

as differentiated from already 

authorized forms of handgear (rod-andreel or handline) and longline gear. This 

is a change from what was proposed. 

Under existing regulations, green-stick 

gear is already authorized depending on 

how it is configured and how many 

hooks are on each line. Due to the 

current confusion over what is already 

allowed and how the draft preferred 

alternative may or may not have 

changed current uses of green-stick gear, 

NMFS is not modifying the list of 

authorized gears for green-stick gear at 

this time. In addition to the existing 

confusion and the potential to 

exacerbate the situation by changing the 

regulations, there is conflicting opinion 

and little data to support or refute its 

efficiency and impact on target and nontarget stocks. NMFS intends to publish 

a brochure clarifying acceptable 

configuration of green-stick gear under 

the existing HMS regulations. In the 

meantime, NMFS will also work with 

current logbook and monitoring 

programs to examine ways to collect 

additional information on the use of 

green-stick gear and its impact on the 

environment as well as its social and 

economic benefits and consequences. 

Comment 19: NMFS received 

numerous comments in support of 

authorizing green-stick gear for targeting 

BFT, as well as BAYS. These comments 

include: green-sticks are permanently 

attached to the vessel, so why do the 

proposed regulations state that a vessel 

could never possess a BFT onboard if 

green-stick gear is onboard; green-stick 

gear is the same as the trolling fishery, 

meaning the same boats, same gear, and 

same permits are used as those used to 

target BFT; the Japanese use this gear to 

harvest BFT because minimal lactic 

acids build during the fight; green-stick 

gear should be allowed for all Atlantic 

tunas provided there are mandatory 

permitting, reporting, monitoring, and 

enforcement of this fishery; BFT have 

been harvested using green-stick gear in 

the past and should be allowed to be 

continued; in North Carolina, greenstick gear has been used to catch BFT; 

past BFT landings using this gear type 

have been reported as rod-and-reel 

therefore a group of individuals are 

going to be adversely impacted if BFT 

are not allowed; this rule will make it 

even harder to catch the BFT quota; and, 

curiosity as to what conservation 

benefits are to be had by not allowing 

BFT to be retained as there are other 

management measures in place for BFT 

such as size and retention limits as well 

as quotas. One comment stated support 

for General category fishermen to target 

BFT with green-stick. The same 

commenter only supported the 

authorized use of green-sticks by 

longline permitted vessels as an allowed 

gear for directed YFT fishing and did 

not support the use of green-sticks by 

pelagic longline fishermen to target BFT 

while aboard a permitted pelagic 

longline vessel. 

Response: Throughout the 

development of the Draft Consolidated 

HMS FMP, most of the analysis and 

comment from scoping led the Agency 

to determine that green-stick gear was 

primarily used to target BAYS tunas and 

that the methods of fishing with the gear 

were not conducive to targeting BFT. In 

addition, due to the current severely 

depleted status of the BFT stock, the 

introduction of a new gear-type and 

adding fishing pressure in this already 

heavily capitalized fishery is not 

appropriate at this time. Thus, it was 

determined in the Draft Consolidated 

HMS FMP that it was possible to 

consider the use of green-stick gear, in 

a manner that modified the status quo, 

for a BAYS only fishery. Furthermore, it 

was determined that excluding BFT 

from the allowed list of target species 

would provide marginal positive 

economic and social impacts to the 

BAYS fishery with neutral biological 

impacts to the BFT stock. However, at 

several public meetings on the Draft 

Consolidated HMS FMP and in written 

comment, particularly from the midAtlantic area, it was evident that there 

is an active interest in using the gear to 

target BFT. The preferred alternative in 

the Draft Consolidated HMS FMP could 

have eliminated this opportunity 

allowed under the status quo, provided 

the gear is configured to conform to the 

current regulations. For BFT fishing, 

these conditions exist generally when 

commercial fishing for BFT in the 

General category (or with an HMS CHB 

permit) using handgear (rod-and-reel, 

handline, or bandit gear) with two 

hooks or less. These conditions also 

exist when recreationally fishing for 


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BFT in the Angling category (or with an 

HMS CHB permit) using handgear (rodand-reel or handline) with two hooks or 

less. The limit on the number of hooks 

for both recreational and commercial 

handgear has helped limit effort in 

currently overcapitalized fisheries 

targeting species with weak stock status 

(i.e., either overfished or approaching 

overfishing). Furthermore, the 

incidental retention of BFT by greenstick gear, trailing more than two hooks, 

is authorized under a Longline category 

permit so long as all other 

corresponding management measures 

are adhered to such as target catch 

restrictions, use of circle hooks, 

avoidance of closed areas, etc. 

Since the publication of the Draft 

Consolidated HMS FMP in August 2005, 

NMFS received data on the performance 

of both the recreational and commercial 

BFT fishery. In the case of the 

commercial fishery, landings were low 

throughout the 2005 fishing season. The 

2005 season was also marked by a 

noticeable lack of availability of 

commercial sized BFT throughout their 

traditional fishing range and, in 

particular, BFT were largely absent off 

southern states during the winter of 

2005/2006. Although the available quota 

in the commercial size classes is high, 

scientists continue to be concerned over 

the status of this stock, especially the 

abundance of these larger fish that 

represent the potential spawners for 

future recruitment, particularly in the 

Gulf of Mexico. An international stock 

assessment on the current status, and 

future prognosis, of BFT is scheduled 

this year by the SCRS and new 

recommendations, if any, by ICCAT 

would not be available until November 

2006. NMFS will continue to analyze 

potential impacts of authorizing greenstick gear and may consider 

modifications in the future, as 

appropriate. 

Comment 20: NMFS received several 

comments regarding the technical 

nature of green-stick gear including 

comments comparing and contrasting 

the gear type to longline gear and 

commercial or recreational handgear 

such as handline and rod-and-reel. 

Comments included: green-stick gear is 

very different from longline gear in that 

when deploying green-stick gear the 

greatest distance the hooks are from the 

boat is 500 feet, whereas PLL gear has 

one hook a football field length away 

from one another; longline gear is set in 

the water column with many hooks 

while green-stick is trolled at a high 

speed with the artificial baits suspended 

above or skipping across the waters 

surface; this gear is trolled and is not set 

out to drift, which makes it very 

different from the definition of a 

longline gear; green-stick is similar to 

longline gear therefore it should be 

prevented from entering into closed 

areas; this gear is still a longline because 

of the use of hydraulics and several 

hooks; there are two distinct types of 

green-stick fishing and each should be 

carefully defined separately; the 

commercial green-stick method uses 

multiple hooks with artificial baits on a 

single line to catch Atlantic tunas, 

including BFT; the recreational greensticking is an ‘‘angling’’ method 

primarily using rods-and-reels to catch 

Atlantic tunas, including BFT; some 

recreational gear is being pulled with 

more than two hooks per line; teasers 

without hooks should be allowed; the 

definition should include using no more 

than two hooks per any single line 

attached to the green-stick that basically 

acts as a vertical out-rigger; green-stick 

gear should be restricted to hand 

powered reels; green-stick gear is also 

appropriate for use in the Angling and 

General category fisheries; and, 

recreational fishermen using green-stick 

gear could open up illegal commercial 

sale opportunities. 

Response: NMFS notes that there are 

considerable similarities between the 

use of green-stick gear and recreational 

and commercial handgear as well as 

longline gear depending on how greenstick gear is configured and used under 

current definitions at 50 CFR parts 600 

and 635 and in accordance with all gear 

operation and deployment restrictions 

at 50 CFR 635.21. ‘‘Longline’’ means 

fishing gear that is set horizontally, 

either anchored, floating, or attached to 

a vessel, and that consists of a mainline 

or groundline with three or more leaders 

(gangions) and hooks, whether retrieved 

by hand or mechanical means. Any 

hook and line gear with three or more 

hooks is considered to be a longline. In 

addition to the use of rods and reels, 

‘‘handline gear’’ means fishing gear that 

consists of a mainline to which no more 

than two leaders (gangions) with hooks 

are attached, and that is released and 

retrieved by hand, rather than by 

mechanical means. Finally, the use of 

bandit gear and downriggers is also an 

authorized means of deploying and 

retrieving the hook and line. ‘‘Bandit 

gear’’ means vertical hook and line gear 

with rods that are attached to the vessel 

when in use. Lines are retrieved by 

manual, electric or hydraulic reels. A 

‘‘downrigger’’ is a piece of equipment 

attached to a vessel and with a weight 

on a cable that is in turn attached to 

hook-and-line gear to maintain lures or 

bait at depth while trolling. In addition 

to the above definitions and gear 

restrictions, specific additional 

management measures may apply to the 

use of gear depending on the targeted 

fishery and HMS or tuna vessel permits 

(i.e., 50 CFR part 635 subpart C, as well 

as general permitting, recordkeeping, 

and monitoring requirements at 50 CFR 

part 635 subpart A). 

Comment 21: NMFS received several 

comments and questions noting the 

level of confusion regarding what 

constitutes the technical nature of 

‘‘green-stick’’ gear, and how it can 

already be used versus modified by the 

proposed alternative. Comments 

include: the definition of ‘‘longline 

gear’’ is the problem, not ‘‘green-stick 

gear’’; over one hundred green-sticks 

have been sold and you need to change 

the definition; it is not the stick that is 

the most important part of this gear, 

rather the suspended bait attracts the 

fish, not the number of baits; fishermen 

can use only one rod due to tangling; 

green-sticks are permanently attached to 

the vessel; green-stick gear is used to 

catch larger tuna, and that the gear is 

set-up vertically allowing the bait to fish 

further from the vessel; we support the 

use of green-stick gear by commercial 

vessels, but only if restricted to hand 

powered reels, but not if used with 

electric or hydraulic reels; this trolling 

method does not require any large 

device and is easy to set up on a small 

vessel and it is used to catch BFT and 

YFT around the world; the name 

‘‘green-stick’’ comes from the original 

color of the pole, but today it is 

available in a variety of colors; and, as 

green-stick gear is permanently attached 

to the vessel there could be enforcement 

issues as the gear can be configured 

either as commercial or recreational. 

Questions include: what permit would 

be required to use this gear; would live 

bait be allowed with this gear; will 

configuration of the gear use rods and 

reels or hydraulic drum, how would one 

know the type of gear used to catch the 

fish if different gear types are allowed 

on the same vessel but not authorized to 

land the same species; is there a length 

limit on a rod and reel to distinguish it 

from green-stick gear; what does it 

matter how many hooks are on the line 

when operating under a General 

category permit; if we have longline and 

incidental BFT permits can we use 

green-stick gear; how do the incidental 

limits apply to longline vessels using 

green-stick gear; under the current 

regulations, what permit would be 

required for someone who fishes with 

green-stick gear for YFT; which will 

have more hooks - green-stick gear or 

recreational gear; can green-stick gear 

fish in the closed areas; do the reporting 


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requirements for General category 

permit holders call for reporting the gear 

employed; would green-stick fishermen 

be able to use live bait as it is proposed 

currently; in which fishery can the gear 

be authorized; is green-stick gear 

currently used in the Gulf; and can it be 

used at all in the Gulf of Mexico where 

BFT cannot be targeted since it is a 

spawning area? 

Response: NMFS acknowledges that 

there is considerable confusion over the 

status of green-stick in the HMS 

fisheries under current management 

measures. NMFS intends to publish a 

brochure to clarify the current situation. 

This rule will maintain the current 

definitions for use of longline gear in 

the longline fishery and handgear in the 

commercial General category, the 

recreational HMS Angling, and the HMS 

CHB fishery. Thus, the use of greenstick gear is still allowed as in the past 

and in conformance with the 

appropriate management measures and 

existing reporting requirements for these 

HMS fisheries. No new regulatory 

definitions or permits are being 

implemented at this time. Green-stick 

gear can be used in any configuration so 

long as it conforms to current definition 

of the use of longline or hook-and-line 

handgear as currently defined in the 

regulations, and as described in the 

response to Comment 20 above. 

Comment 22: NMFS received several 

comments regarding the need for 

additional data regarding this gear-type. 

One comment stated the fishery needs 

further analysis on the use and 

configuration of green-stick gear and 

one commenter questioned what 

information would NMFS need 

collected to conduct a more detailed 

analysis of the impacts of using this 

gear. A comment stated that there needs 

to be some accommodation of this gear 

type, even if it is through an EFP to 

collect further information. A comment 

stated that the information used from 

the North Carolina Sea Grant paper 

referenced in the Draft Consolidated 

HMS FMP is out of date and that the 

gear has been altered as individuals 

have gained experience using it. 

Response: NMFS agrees that the 

Agency and the fishery could benefit 

from additional data on the use of greenstick gear and its impact on both the 

recreational and commercial 

constituencies, HMS stocks, and 

bycatch. In the past, green-stick gear 

was identified as a unique gear type on 

HMS Vessel Pelagic Logbook reports, 

but was discontinued as it was not a 

uniquely identified and defined gear. It 

also appears that fishermen had already 

been reporting green-stick HMS 

landings under either hook and line gear 

or longline gear. As a first step, NMFS 

intends to publish a brochure to clarify 

current allowable uses of the gear and 

how existing vessel and dealer permit 

and reporting requirements apply. 

NMFS also intends to examine whether 

or not existing monitoring programs 

should be modified to understand more 

adequately the uses and impacts of this 

gear or whether some additional 

program is necessary, including 

potential use of the EFP program. The 

North Carolina Sea Grant paper 

published by Westcott, 1996, contains 

historical and background data on 

green-stick gear that NMFS used to 

define and graphically present different 

ways to configure the gear. NMFS 

would appreciate assistance in locating 

more recent updates and/or publications 

that could be used to assist with the 

development of the planned brochure 

describing green-stick gear. NMFS is 

interested in knowing how many 

fishermen use, or have used, this gear 

and in what configurations that conform 

with or differ from the current 

definitions. In addition, NMFS is 

interested in the locale and distribution 

of its use, preferred target species, 

efficiency over other gear-types, 

amounts and rates of bycatch, and social 

and economic costs and benefits of 

using the gear, among other things. 

Comment 23: NMFS received 

comments on the bycatch associated 

with green-stick gear. Those comments 

include: almost all tuna are hooked in 

the mouth and could be released 

relatively unharmed, there are no turtle 

interactions, and other bycatch is 

limited because billfish and shark 

species have difficulty reaching bait that 

spends so much time in the air; and, 

green-stick gear is a gear that minimizes 

the interactions of billfish with 

commercial handgear and should be 

promoted. Other comments noted a 

need to be cautious about potential 

bycatch issues and that NMFS needs to 

confirm the level of bycatch associated 

with this gear type; NMFS needs to 

prohibit this gear’s use in the Gulf of 

Mexico due to potential bluefin tuna 

bycatch; the description of green-stick 

gear sounds like longline gear, which 

could mean greater bycatch and there 

should be no additional gear used in the 

Gulf of Mexico; and, we are opposed to 

green-stick gear because it appears to be 

a trolled longline and the biggest 

bycatch of marlin is in the yellowfin 

tuna fishery. 

Response: This rule will not modify 

the regulations to define ‘‘green-stick 

gear’’ and thus NMFS does not expect 

the levels of bycatch to change as a 

result of implementing the No Action 

alternative. NMFS has minimal data 

available to analyze the bycatch issues 

associated with green-stick gear 

deployed as a form of handgear or as a 

longline. NMFS expects that trolled 

green-stick gear, configured as a version 

of rod-and-reel handgear, would have 

bycatch issues similar to that of 

conventionally configured rod-and-reel 

gear. Data from Pacific green-stick 

fisheries indicate that increases in 

billfish bycatch are possible although no 

billfish were reported caught on greenstick gear in Atlantic commercial 

fisheries. Under the current regulations, 

the use of green-stick gear is allowed (as 

clarified in the response to Comment 21 

and elsewhere in this document) in the 

Gulf of Mexico although it may not be 

used to target BFT in this area to protect 

spawning BFT. NMFS continues to be 

concerned about levels of bycatch in 

HMS fisheries as well as in other 

fisheries that encounter HMS as 

bycatch. Overall, the Agency has 

continued to address bycatch issues in 

federally managed fisheries and, 

consistent with National Standard 9, to 

implement management measures that 

minimize bycatch. Since 1999, NMFS 

has implemented a number of time/area 

closures to reduce bycatch to the extent 

practicable and, in the Draft 

Consolidated HMS FMP, examined 

numerous alternatives to determine if 

the closures were still meeting their 

original goals. Many of these measures, 

but not all, were designed to reduce 

bycatch in the pelagic longline fleet. In 

addition, the Draft Consolidated HMS 

FMP examined alternatives to train and 

certify fishermen in the safe handling, 

release, and disentanglement of 

protected resources from pelagic and 

bottom longline and gillnet gear. With 

the addition of new measures in the 

Final Consolidated HMS FMP, NMFS 

expects to continue minimizing bycatch 

throughout HMS fisheries. 

iii. Buoy Gear 

Comment 24: NMFS received several 

comments supporting alternative H5, 

which would authorize the use of buoy 

gear only in the commercial swordfish 

handgear fishery. Some of those 

comments include: buoy gear should be 

for commercial use and handlines for 

recreational use; more recreational 

fishermen are currently using buoy gear 

than commercial fishermen; buoy gear 

should be used to target swordfish 

because it is an effective gear; I do not 

support the use of recreational buoy 

gear, but it should be a commercial 

subcategory; buoy gear should be 

allowed, but not where it will conflict 

with recreational vessels and gear; and 

this alternative is trying to establish a 

commercial fishery. Pelagic longline 


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vessels could remove their longline gear 

and set buoy gear in closed areas. 

Response: Free-floating buoyed lines 

are currently in use in many areas; 

however, they are being fished as 

‘‘handline gear,’’ as defined by current 

HMS regulations. Currently, there are no 

limits on how many handlines a vessel 

may deploy, as long as each gear has no 

more than two hooks attached. NMFS 

heard during scoping that the use of this 

gear was expanding. This rule will 

change the definition of handline gear to 

require that the gear be attached to a 

vessel and allow free-floating handlines, 

renamed as buoy gear, to be utilized in 

the swordfish handgear fishery only. 

NMFS took this action, in part, to limit 

the number of individual gears a vessel 

may possess or deploy when targeting 

swordfish commercially and eliminate 

the use of the gear in all other HMS 

fisheries, both recreational and 

commercial. Vessels with directed 

swordfish or swordfish handgear LAPs 

may utilize this gear type to capture 

swordfish in pelagic longline closed 

areas as long as the longline gear had 

been removed from the vessel. 

Comment 25: NMFS received several 

comments opposed to alternative H5, 

which would authorize buoy gear for 

the commercial swordfish handgear 

fishery and limit vessels to possessing 

or deploying no more than 35 

individual buoys, with each gear 

deployed consisting of one buoy 

supporting a single mainline with no 

more than two hooks or gangions 

attached. The comments include: buoy 

gear is needless and would be harmful 

to recreational interests; recreational 

fishermen are concerned about the use 

of this gear type; buoy gear would 

increase fishing effort on swordfish 

when it is still overfished; opening up 

the buoy fishery to fill the quota is a 

mistake; buoy gear is indiscriminate and 

destructive and has no place in a 

sustainable, viable fishery; buoy gear is 

nothing more than a vertical longline 

and we need reductions in bycatch or 

bycatch mortality. We are opposed to 

any fishing that allows unattended gear; 

buoy gear should not be allowed in the 

HMS fisheries for numerous reasons, 

including: a hazard to navigation; an 

indiscriminate killer like longlines; and 

deployment of the gear with live baits 

will increase discards and dead discards 

of numerous species; if buoy gear use 

continues, it is probable that the gear 

will interact with marine mammals in 

the U.S. EEZ; and it is morally 

incomprehensible that NMFS is going to 

shut down the recreational white marlin 

fishery and yet allow thousands of 

hooks to be deployed with live baits on 

buoy gears. 

Response: As discussed in the 

Consolidated HMS FMP, this gear type 

is currently in use as handline gear and 

anecdotal information suggests that it is 

being used by both commercial and 

recreational fishermen to target 

swordfish as well as other species. The 

rule will re-name the gear to buoy gear, 

limit its use to only those vessels 

permitted to participate in the limited 

access commercial swordfish handgear 

fishery, and significantly limit the 

number of individual gears that vessels 

could possess or deploy (from an 

unrestricted number to a maximum of 

35). This action will ensure that the 

fishery, which currently occurs mainly 

in a known swordfish nursery area, does 

not expand in effort uncontrollably and 

that only a manageable number of buoy 

gears may be deployed by each vessel. 

Consistent with the current definition of 

‘‘handline gear,’’ each buoy gear will be 

limited to having no more than two 

hooks or gangions attached. Vessels 

deploying buoy gear may use live or 

dead baits and may only retain 

swordfish captured on the gear. All 

tunas, undersized swordfish, sharks, 

marlins, or sailfish captured on buoy 

gear must be released in a manner that 

maximizes their probability of survival. 

This gear differs significantly from 

longline gear, which is defined as 

having three or more hooks or gangions 

attached. The rule will allow vessels 

deploying this gear type to use multiple 

floatation/gear marking devices, 

including but not limited to, buoys, 

floats, lights, radar reflectors, reflective 

tape, and high-flyers, to minimize any 

hazards to navigation. Logbook data 

from 2004 show that 68 percent of 

swordfish captured on commercial 

handline trips were retained. These 

same data show that over 75 percent of 

swordfish discarded from these trips 

were released alive. NMFS monitors 

gears for interactions with marine 

mammals and sea turtles and will 

continue to monitor buoy gear catch, 

bycatch, and any interactions with 

protected resources though the HMS 

logbook program. 

Comment 26: If handgear must be 

attached to the vessel, how do the buoy 

gear requirements affect alternative H5, 

which authorizes buoy gear in the 

commercial swordfish handgear fishery, 

and limits vessels employing buoy gear 

to possessing and deploying no more 

than 35 individual buoys, with each 

buoy having no more than two hooks or 

gangions attached? 

Response: Handgear (handline, 

harpoon, rod and reel, and bandit gear) 

are not all currently required to be 

attached to a vessel. This final rule will 

modify the definition of handline to 

require that handlines be attached to, or 

in contact with, a vessel. The buoy gear 

alternatives will not be affected by the 

handline definition change as the 

selected buoy gear alternative defines 

buoy gear as a separate gear type. 

Comment 27: NMFS received a few 

comments opposed to alternative H6, 

authorize buoy gear in the commercial 

swordfish handgear fishery and limit 

vessels to no more than 50 individual 

buoys, each supporting a single 

mainline with no more than 15 hooks or 

gangions attached. These comments 

include: we do not support alternative 

H6; and alternative H6 is minilonglining and should be limited to 

vessels with all three permits (Directed 

or Incidental Swordfish, Atlantic Tunas 

Longline, and Directed or Incidental 

Shark). 

Response: The Agency is not selecting 

alternative H6 due, in part, to the 

comments in opposition to allowing that 

many free floating buoy gears. In this 

action, the Agency is selecting a 

modification of alternative H5 which 

will authorize buoy gear for the 

commercial swordfish handgear fishery 

and limit vessels to possessing or 

deploying no more than 35 floatation 

devices, with each gear consisting of 

one or more floatation devices 

supporting a single mainline with no 

more than two hooks or gangions 

attached. This gear differs significantly 

from longline gear, which is defined as 

having three or more hooks or gangions 

attached. Fishermen deploying buoy 

gear must possess a commercial 

swordfish handgear or a swordfish 

directed limited access permit. 

Comment 28: NMFS received a 

number of comments regarding buoy 

gear capturing undersized swordfish, 

including: 35 individual buoys fished at 

one time is in direct conflict with the 

HMS FMP objective to reduce bycatch 

and to minimize mortality of juvenile 

swordfish; this alternative will produce 

dead juvenile swordfish that are hooked 

and not successfully released due to lost 

gear or gear that cannot be checked in 

a timely manner; what studies show the 

successful release of juvenile swordfish 

when using 35 individual buoys with 

two hooks?; buoy gear fishermen 

currently catch approximately 25 - 30 

percent juvenile swordfish (< 33 

inches); circle hooks can reduce post 

release mortality of juvenile swordfish 

and non-targeted species, they should 

be considered for this gear; and, about 

50 percent of fish caught on well tended 

buoy gear can be released. 

Response: In response to public 

comment, the Agency has modified the 

draft preferred alternative to allow buoy 

gear fishermen the option of deploying 


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multiple floatation devices on 

individual buoy gears. The final rule 

will maintain the maximum limit of 35 

floatation devices possessed or 

deployed. Under this rule, fishermen 

who fish three floatation devices per 

gear will be limited to deploying 

approximately 11 individual buoy gears. 

Similarly, fishermen using four 

floatation devices per gear will be 

limited to deploying approximately 

eight buoy gears. Logbook data from 

2004 show that 68 percent of swordfish 

captured on commercial handline trips 

were retained. These same data show 

that over 75 percent of swordfish 

discarded from these trips were released 

alive. Given the fact that this fishery 

currently happens in a swordfish 

nursery area, it is likely that the 

swordfish that are discarded are done so 

because they are undersized. 

Commenters requested the ability to use 

several floatation devices per gear to 

allow for the use of a ‘‘bite indicator’’

float, which will let fishermen know 

when a fish is captured by the gear. This 

modification could allow fishermen to 

easily identify those gears that have 

captured fish and may allow fishermen 

to release any undersized swordfish or 

non-target species more quickly and 

with a greater probability of survival. 

Additionally, the modification to allow 

multiple floatation devices per gear may 

reduce the number of gears deployed 

and may minimize lost gear by making 

the gears more buoyant and visible. 

Although the Agency received public 

comment supporting the use of circle 

hooks with buoy gear, a circle hook 

option was not specifically included in 

the alternatives in the Draft 

Consolidated HMS FMP. NMFS is 

considering the utility of circle hooks 

throughout HMS fisheries and may 

analyze a circle hook requirement for 

buoy gear in a future rulemaking. 

Comment 29: NMFS received a few 

comments related to the monitoring 

requirements for buoy gear. Such 

comments include: can fishermen use 

additional locating devices in addition 

to the single buoy required (e.g., high 

flier to locate the buoy in bigger seas) to 

improve monitoring?; all four methods 

of marking buoy gear are needed to 

avoid lost fish and gear; there should 

definitely be a requirement for marking 

and monitoring; a visual radius or 

reasonable area a fisherman could fish 

with buoy gear should be defined; buoy 

gear ‘‘tending’’ requirements should be 

defined, like in the shark gillnet fishery, 

to prevent fishermen from tending 

buoys that belong to others; it would be 

impossible to monitor all 35 buoys that 

are free floating in rough weather 

conditions; while the handgear operator 

is retrieving a buoy that has hooked a 

swordfish of sustainable size, the other 

34 buoys will not be attended; there are 

no minimum requirements for flags, 

radar reflectors, radio beacons, or strobe 

lights; and is there any information 

about the loss of buoys? 

Response: In response to public 

comment, the Agency has modified the 

draft preferred alternative to allow buoy 

gear fishermen the option of deploying 

multiple floatation devices on 

individual buoy gears. The final rule 

will maintain the maximum limit of 35 

floatation devices possessed or 

deployed. Under the modified 

alternative, fishermen who fish three 

floatation devices per gear will be 

limited to deploying approximately 11 

individual buoy gears. Similarly, 

fishermen using four floatation devices 

per gear will be limited to deploying 

approximately eight buoy gears. If a gear 

monitoring device used by a fisherman 

is positively buoyant, it will be included 

in the 35 floatation device vessel limit. 

Consistent with current regulations, 

each floatation device attached to a 

buoy gear must be marked with either 

the vessel’s name, registration number, 

or permit number. At this time, NMFS 

is not requiring any specific gear 

tending requirements for vessels 

deploying buoy gear; however, the 

Agency recommends that fishermen 

remain in the general area where they 

have set their gear and monitor each 

gear as closely as possible. NMFS 

realizes that different vessels and crews 

will have varying abilities to monitor 

gear and that weather and sea condition 

may also impact their ability to monitor 

gear closely. The Agency cautions 

fishermen to limit the number of gears 

they deploy to a reasonable number that 

they can realistically monitor and 

retrieve safely. At this time, the Agency 

does not possess any data regarding gear 

loss in this fishery. The Agency may 

conduct additional rulemaking in the 

future, if additional data indicates that 

gear tending requirements or other 

bycatch reduction measures are needed. 

Comment 30: NMFS received a 

number of comments regarding the 

definition of ‘‘buoy gear,’’ including: 

consider modifying the definition of 

buoy gear because one buoy and all the 

line fished vertically will make it 

difficult to keep visual contact with the 

gear; without some way of knowing 

when a small fish is hooked, it may be 

several hours before the gear is 

retrieved; consider allowing a maximum 

of 20 feet of horizontal line on the 

surface for the purpose of identifying 

and monitoring buoy gear allowing 

space for ‘‘bite indicator’’ float and an 

identification buoy/hi-flier; additional 

equipment may be necessary to prevent 

large swordfish from sounding; allow 

additional gear at each buoy for retrieval 

and to determine if a fish is on the line; 

why is there no length or distance 

specified between buoys for the 

commercial buoy gear?; do the 

regulations stipulate how far apart the 

buoy gear can be spaced?; are buoy gears 

allowed to be attached to a hydraulic 

drum when being used commercially?; 

circle hooks, VMS, light sticks, live bait, 

and Careful Handling/Release training 

and certification should be mandatory; 

could you require the use of Global 

Positioning Systems (GPS) on the buoy 

gear?; there should be a prohibition on 

using live bait; an electronic monitoring 

system must be required for each buoy; 

there is no data to justify limitations on 

the number of buoys and/or hooks at 

this time; and there is no criteria for 

what would constitute an acceptable 

buoy for this type of gear. 

Response: As discussed above in the 

response to Comments 27, 28, and 29, 

NMFS has modified the draft preferred 

alternative in response to public 

comment and included a definition of 

‘‘floatation device.’’ The final rule will 

allow fishermen deploying buoy gear to 

attach multiple floatation devices to 

each buoy gear, including ‘‘bite 

indicator floats,’’ however the rule will 

maintain the limit of 35 floatation 

devices possessed or deployed. A 

floatation device is defined as any 

positively buoyant object rigged to be 

attached to a fishing gear. Buoy gear 

must be released and retrieved by hand. 

If gear monitoring devices used by 

fishermen are positively buoyant and 

rigged to be attached to a fishing gear, 

they will be included in the 35 

floatation device vessel limit and will 

need to be marked as per the gear 

marking regulations. Additionally, if 

more than one floatation device is used, 

no hook or gangion may be attached to 

the mainline or a floatation device on 

the horizontal portion of the gear. At 

this time, NMFS is not specifying any 

maximum or minimum length of 

horizontal line at the surface. However, 

to limit any hazard to navigation and 

potential gear loss by ship strike, NMFS 

recommends that fishermen set only the 

amount of gear that is needed at the 

surface. Similarly, NMFS is not 

specifying a minimum or maximum 

distance between deployed buoy gears. 

NMFS urges fishermen to be responsible 

in their fishing activities and to only 

fish gear over a distance that they can 

realistically monitor. Because of the 

limitations on the number of buoy gears 

that can be deployed at one time, NMFS 


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is not requiring GPS or electronic 

monitoring equipment at this time. 

Given the low bycatch rates and high 

probability of survival per logbook data 

on handline, NMFS is not implementing 

requirements regarding circle hooks, 

light sticks, live bait, or Careful 

Handling/Release training and 

certification for buoy gear fishermen at 

this time. As more information and data 

become available regarding the use of 

buoy gear, NMFS may investigate some 

of these options for the buoy gear 

fishery in future rulemakings. 

Comment 31: NMFS received a few 

comments regarding permit 

requirements for using buoy gear and 

comments supporting a limit on the 

number of vessels using buoy gear. 

These comments include: buoy gear 

should be limited to current permit 

holders only and no increase in its use 

should be allowed in future permit 

considerations; what kind of permit do 

you need for buoy gear?; buoy gear users 

should have the three permits that PLL 

needs; approximately 10 boats have 

used buoy gear in the past, however, it 

is now likely that only about three 

vessels use this gear type; how many 

participants are actively using buoy 

gear?; and, how many swordfish permits 

are there? Effort is going to increase. 

Response: The final rule will only 

authorize buoy gear in the commercial 

swordfish handgear fishery. Vessels 

deploying buoy gear must have a 

commercial swordfish handgear limited 

access permit or a swordfish directed 

limited access permit. As of February 

2006, there were 88 commercial 

swordfish handgear permits and 191 

directed swordfish permits. In 2004, 

seven vessels reported using handline 

gear in the HMS logbook. The logbook 

does not differentiate between trolled 

handlines, free-floating handlines, or 

attached handlines; however, some of 

those seven vessels likely fished freefloating handlines (buoy gear) and 

targeted swordfish. Based on historic 

participation and new restrictions, 

NMFS does not anticipate large 

increases in participation in this sector 

of the swordfish fishery. 

Comment 32: NMFS received two 

comments inquiring about 35 buoys as 

the appropriate limit for buoy gear. 

These comments are: what is the basis 

for selecting 35 buoys as the limit?; and, 

how did the Agency select 35 buoys? 

Response: NMFS selected the 35 

floatation limit based on support from 

public comment and because the 

Agency identified this number as the 

upper limit of unattended buoy gear that 

a commercial fisherman could monitor 

and prevent from being lost. The 35 

floatation limit would also allow most 

vessels using this gear to possess spare 

gear onboard. Furthermore, as described 

in the response to Comments 29 and 30, 

NMFS modified the definition to allow 

for multiple floatation devices per 

individual buoy gear. This upper limit 

should provide flexibility and allow for 

the use of ‘‘bite indicator’’ floats by most 

fishermen using this gear. 

Comment 33: NMFS received a 

number of comments on the proposed 

limit of 35 buoys, including: tending 35 

buoys will be inefficient, taking 2 - 2.5 

hours to set 35 buoys and 3 - 3.5 hours 

to check each one; no more than 12 

buoys should be allowed when 

operating alone; with two crew 

members, up to 20 buoys could be 

fished; can the number of permissible 

buoys be linked to people onboard the 

vessel; participants currently cannot 

fish 35 buoys but may be able to in the 

future; 35 buoys with two hooks apiece 

is almost like hauling a 30 mile longline 

with the current; define and allow this 

gear type for swordfish commercial 

harvest, but limit the number of buoys 

to a more manageable number for 

protection of juvenile swordfish, 

allowing no more than 10 buoys makes 

the gear maintainable and produces a 

high quality product with minimal 

impact on juvenile fish; 35 buoys are 

unmanageable and are tended exactly 

like a short pelagic longline with 

overnight soak time violating the intent 

of the area closure; 10 to 12 buoys with 

a maximum of two hooks is the most 

that should be allowed, a prudent 

skipper and crew could not manage 

more than 10 buoys at a time and that 

would be under ideal sea conditions; 

The regulations should allow a 

maximum of 10 to 12 buoys, otherwise 

bycatch cannot be prevented; 35 buoys 

with two hooks each is not considered 

‘‘handgear’’; and, 35 buoys are far too 

many and may allow bigger vessels from 

the NED to move in and use this gear 

in closed areas, this shift could create 

tension between user groups and, 

displace the smaller vessels that 

pioneered this type of gear. This already 

happened in the FEC area with a boat 

using 20 - 25 radio buoys; 35 buoys are 

unmanageable; more than 12 buoys are 

unmanageable. The definition of this 

gear should be by the drop line, not the 

number of buoys; pelagic longline 

fishermen would need more than 35 

buoys to make a go of the buoy fishery; 

and there is no data that shows a limit 

on buoy gear is needed. 

Response: In response to public 

comment, the Agency is selecting a 

modification of alternative H5 that will 

authorize buoy gear for the commercial 

swordfish handgear fishery and limit 

vessels to possessing or deploying no 

more than 35 floatation devices, with 

each gear consisting of one or more 

floatation devices supporting a single 

mainline with no more than two hooks 

or gangions attached. As discussed 

above in the response to Comments 27 

- 30, the modified alternative will allow 

fishermen deploying buoy gear to attach 

multiple floatation devices to each buoy 

gear, including ‘‘bite indicator’’ floats, 

however the alternative maintains the 

limit of 35 floatation devices possessed 

or deployed. This rule gives greater 

flexibility in the gear configuration by 

allowing fishermen to alter the gear 

depending on weather or sea conditions, 

crew size, and characteristics of 

different fishing vessels. If gear 

monitoring devices used by fishermen 

are positively buoyant and rigged to be 

attached to a fishing gear, they will be 

included in the 35 floatation device 

vessel limit and will need to be marked 

in accordance with the gear marking 

regulations. Additionally, if more than 

one floatation device is used, no hook 

or gangion may be attached to the 

mainline or a floatation device on the 

horizontal portion of the gear. Under the 

final rule, fishermen who fish three 

floatation devices per gear will be 

limited to deploying approximately 11 

individual buoy gears. Similarly, 

fishermen using four floatation devices 

per gear will be limited to deploying 

approximately eight individual buoy 

gears. NMFS realizes that different sized 

vessels and crews will have varying 

abilities to monitor gear and that 

weather and sea conditions may also 

affect their ability to monitor gear 

closely. The Agency cautions fishermen 

to limit the number of buoy gears they 

deploy to a reasonable number that can 

be realistically monitored and retrieved 

safely. NMFS realizes that the limits on 

buoy gear will likely reduce the chances 

that large distant water vessels could 

make profitable trips with buoy gear. 

During the scoping process, the Agency 

received comments indicating that the 

swordfish handgear fishery does not 

appear to be widespread and appears to 

operate off the East Coast of Florida. The 

final rule was developed in an attempt 

to maintain positive economic benefits 

for the commercial sector currently 

utilizing the gear type. 

Comment 34: NMFS received a 

number of comments opposed to 

authorizing buoy gear and the use of 

buoy gear in pelagic longline closed 

areas. Those comments include: the 

proposed buoy gear would operate in a 

manner similar to longline gear. Do not 

reopen the longline fishery to further 

commercial exploitation in our waters; 

buoy gear is proposed for use in areas 


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currently closed to longline gear; this 

commercial gear violates the intent and 

purpose of closed areas and the basic 

reason these areas were originally 

created; how do these new proposed 

gears mesh with the current closed 

areas?; longline fishermen are by far the 

most indiscriminate killers of the very 

species that recreational fishermen and 

conservation groups try to protect. Yet, 

they are being allowed back into closed 

areas and are allowed to continue using 

longline tackle that has been renamed; 

these areas were closed to PLL and 

allowing buoy gear in will eliminate any 

benefits that the closures had; and, all 

the issues for PLL seem to be there for 

buoy gear. Bycatch issues are still there. 

Response: The final rule will re-name 

free-floating handline gear as ‘‘buoy 

gear,’’ limit vessels deploying the gear to 

possessing or deploying no more than 

35 floatation devices, and will limit its 

use to commercial swordfish handgear 

fishermen. Therefore, this rule 

represents a limitation on the handgear 

fishery over the status quo, and is not 

modifying any current restrictions on 

longline fishing. This gear has been 

utilized with no gear limits by both 

recreational and commercial fishermen 

in areas closed to pelagic longline 

fishing in the past and will be 

prohibited for use by recreational 

fishermen and all commercial fishermen 

not possessing a swordfish handgear or 

swordfish directed limited access 

permit. The continued use of this gear 

by a limited number of fishermen would 

not violate the intent and purpose of the 

East Florida Coast closed area (or other 

PLL closed areas), which was to 

minimize bycatch in the PLL fishery 

while maximizing the retention of target 

species. Current data regarding the 

existing handline fishery indicates that 

bycatch rates with this gear are low with 

no marlin or sea turtles being reported 

caught from 2000 to 2004, and only one 

sailfish, which was released alive. 

Comment 35: NMFS received several 

comments expressing concern over the 

authorization of buoy gear in the East 

Florida Coast PLL closed area, 

including: pelagic longline vessels once 

contributed to a vast amount of dead 

discards of juvenile swordfish in the 

East Florida Coast area and buoy gear 

will have the same effect; the East 

Florida Coast closed area is a vital 

nursery area that needs to be protected; 

there should be no free-floating gear 

allowed in the Florida Straits; buoy gear 

is like longline gear, and NMFS should 

ban longlining for swordfish in the 

Florida Straits; to fish buoy gear in the 

Straits of Florida the handgear operator 

must ensure 100 percent release of 

juvenile swordfish; and, a limit might be 

necessary off Florida, but there might be 

possibilities in other areas where limits 

are not needed. 

Response: As discussed in the 

response to Comment 34 above, the final 

rule will restrict the number of 

unattached handlines or buoy gear that 

may be deployed and will limit the 

number of permit holders authorized to 

utilize the gear type relative to the status 

quo. This gear is currently authorized 

for use with no limitations on numbers 

of buoy gears deployed by both 

recreational and commercial fishermen 

in the East Florida Coast closed area. 

The final rule will prohibit all 

recreational fishermen and commercial 

fishermen not possessing a swordfish 

handgear or swordfish directed limited 

access permit from utilizing the gear 

type. According to 2004 logbook data, 

64 commercial handline trips were 

reported with 404 swordfish reported 

caught. Of those 404 swordfish 

captured, 67.8 percent (274 fish) were 

retained, 24.3 percent (98 fish) were 

released alive, and 7.9 percent (32 fish) 

were discarded dead. 

Comment 36: NMFS received several 

comments concerned about allowing 

buoy gear to operate in the Gulf of 

Mexico. Those comments include: buoy 

gear should not be allowed in the 

DeSoto closures area, nor should it be 

allowed in the Southern Canyon area. 

There should be no free floating gear 

because it could get entangled with oil 

rigs; buoy gear may need greater 

restrictions in the Gulf. I am worried 

about excessive gears and bycatch with 

the currents and weather; concerns on 

how buoy gear will be deployed in the 

Gulf of Mexico with free floating 

drilling barges and their multiple 

thrusters, may lead to pollution issues; 

future generations will suffer and only 

one group will benefit from allowing 30 

- 50 hook sets with no radar reflectors 

into the DeSoto area south of Destin. 

After the buoy fishermen have moved 

on, there will never be another blue 

marlin, swordfish, tuna, or shark in the 

Gulf of Mexico; the De Soto Canyon 

pelagic longline closure has been 

successful over the past five years with 

more tuna, dolphin, swordfish, and 

wahoo; and buoy gear should be banned 

completely from the Gulf of Mexico. 

Response: During the scoping process, 

the Agency received comments 

indicating that the swordfish handgear 

fishery does not appear to be 

widespread and appears to operate only 

off the East Coast of Florida, not in the 

Gulf of Mexico. As discussed under 

Comment 34, the final rule will restrict 

the number of unattached handlines or 

buoy gear that may be deployed and the 

number of permit holders authorized to 

utilize the gear type relative to the status 

quo. In addition, the requirement to 

affix gear monitoring equipment is 

intended to reduce the likelihood of 

gear loss. Additionally, under the final 

rule, buoy gear will only be authorized 

to harvest swordfish, no other HMS 

species may be targeted with buoy gear. 

All other HMS species captured must be 

released in a manner that maximizes 

their probability of survival. NMFS will 

monitor bycatch and gear loss, and may 

make adjustments, as needed, in the 

future. While the owners and operators 

of buoy gear vessels are not required to 

attend the safe handling and release 

workshops that are mandatory for PLL, 

BLL, and gillnet fishermen, these 

owners and operators may use the same 

release techniques and equipment and 

are encouraged to attend. If bycatch 

rates or mortality increase in the buoy 

gear fishery, NMFS may consider 

mandatory workshops for this fishery. 

Similarly, if the fishery expands into the 

Gulf of Mexico, NMFS may consider 

additional restrictions to prevent 

problems with free floating drilling 

barges or to alleviate other problems not 

anticipated at this time. 

Comment 37: NMFS should consider 

geographic limitations for buoy gear to 

minimize negative gear conflicts in a 

future action. 

Response: During the scoping process, 

the Agency received comments 

indicating that the existing swordfish 

handgear fishery does not appear to be 

widespread and appears to operate only 

off the East Coast of Florida. NMFS does 

not expect that this final action, which 

places limits on that existing fishery, 

would change the location of the 

fishery. However, if circumstances 

warrant changes, the Agency may 

consider making adjustments to 

minimize negative impacts in the future, 

if necessary. 

Comment 38: There is no penalty for 

clipping the buoy gear together to create 

a longline. 

Response: Under the current 

regulations, lines with three hooks or 

more are longlines. Vessels clipping 

buoy gears together and having more 

than two hooks on any combination of 

lines would need the appropriate 

permits allowing the operators to 

harvest HMS with longline gear. 

Additionally, these vessels could only 

set linked buoy gear in areas not closed 

to longline fishing. The final rule 

prohibits linking buoy gear together. 

Comment 39: Buoy gear exponentially 

increases the footprint of the vessel 

because it is not attached to the vessel. 

It will become entangled in offshore oil 

platforms and dynamic positioning 

vessels, and other oilfield related 


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facilities and will result in more standoff regulations for the recreational and 

commercial fisheries from these 

structures, not to mention the additional 

expense to the oil companies of 

removing this gear and repairing 

damage caused by it. 

Response: As discussed under 

Comment 34, the final rule will restrict 

the number of unattached handlines or 

buoy gear that may be deployed and the 

number of permit holders authorized to 

utilize the gear type relative to the status 

quo. In addition, the requirement to 

affix gear monitoring equipment is 

intended to reduce the likelihood of 

gear loss. 

iv. Secondary Gear 

Comment 40: NMFS received 

comments on the types of secondary 

gears (also known as cockpit gears) that 

would be authorized under the 

proposed Consolidated HMS 

regulations. Those comments include: 

what are the primary cockpit gears 

included for authorization?; will the 

regulations have a list of acceptable 

cockpit gears because that list is going 

to be extremely long to cover all the 

methods currently used?; people are 

going to need to provide NMFS with a 

list of gears currently used to be sure 

they are included; do not allow dart 

harpoons and other secondary gears to 

be used as primary authorized gears; 

mechanical harpoons should not be 

used as secondary gear; and, if there is 

choice between a gaff, flying gaff, and 

cockpit harpoon, I am going for a 

cockpit harpoon every time to kill fish 

and protect myself. 

Response: The final rule does not list 

specific acceptable secondary gear; 

rather, secondary gears will be 

authorized for assisting in subduing an 

HMS already brought to the vessel with 

an authorized primary gear. Primary 

authorized gears are listed in the current 

HMS regulations at 50 CFR 635.21(e). 

While examples of secondary gears are 

listed in the regulations, the list is not 

all inclusive in order to provide 

fishermen the maximum flexibility in 

using the secondary gear to gain control 

of an animal that will be brought 

onboard the vessel while also 

maintaining safe conditions on the 

vessel. This action will clarify the 

regulations to state that secondary gears 

will not be allowed to capture 

undersized or free-swimming HMS, but 

only to gain control of legal-sized HMS 

brought to the vessel with an authorized 

primary gear with the intent of retaining 

the HMS. This measure will 

acknowledge and account for the 

current HMS regulations at 50 CFR 

635.21(a), which state that an Atlantic 

HMS harvested from its management 

unit that is not retained must be 

released in a manner that will ensure 

maximum probability of survival, but 

without removing the fish from the 

water. 

Comment 41: NMFS received 

comments supporting the use of 

secondary gears. Those comments 

include: I support alternative H7, clarify 

the allowance of handheld cockpit gears 

used at boat side for subduing HMS 

captured on authorized gears; hand 

darts need to be authorized as secondary 

gear so that the people in Florida’s 

swordfish recreational fishery are not 

fishing illegally; and this action is 

necessary to avoid enforcement conflicts 

over what gear is legal for subduing 

HMS. 

Response: The final rule authorizes 

the use of hand-held secondary gears to 

aid anglers in subduing large HMS 

captured by authorized primary gear 

types to reduce the loss of fish at the 

side of the boat, increase safety when 

subduing large HMS, minimize 

enforcement problems, and respond to 

requests from fishery participants to 

clarify the regulations. This action does 

not specify acceptable secondary gears, 

rather it clarifies the HMS regulations to 

state that secondary gear may be used to 

aid in the landing or subduing of HMS 

after they are brought to the vessel using 

a primary authorized gear type only. 

Secondary gears may also reduce the 

loss of fish at boat side, increasing 

retention rates. Primary authorized gears 

are listed in the current HMS 

regulations at 50 CFR 635.21(e). 

D. Regulatory Housekeeping Measures 

i. Definitions of Pelagic and Bottom 

Longline 

Comment 1: NMFS received 

comments in support of the no-action 

alternative to maintain the current PLL 

and BLL gear definitions, and a 

comment in support of the two 

alternatives that were preferred in Draft 

Consolidated HMS FMP. These 

included: I support Alternative I1(a) —

no action. The other alternatives tend to 

micromanage directed shark fishermen 

out of the closed areas, in particular the 

NC BLL time/area closure, by reducing 

profits and causing unnecessary 

economic impacts; if fishermen can tell 

the difference between BLL and PLL 

gears, they should be able to teach 

NMFS enforcement agents the 

difference; it is still clear that there is a 

problem with the BLL and PLL 

definitions. NMFS should reexamine 

this issue with some fishing industry 

assistance; and, NMFS is making a big 

deal and creating potential additional 

economic impacts for enforcement’s 

convenience. It is not an enforcement 

necessity; and PLL and BLL gears 

should be differentiated by the number 

of floats (alternative I1(b)), as well as the 

types of species landed (alternative 

I1(c)). 

Response: NMFS believes that the 

existing regulations defining pelagic and 

bottom longline gear at § 635.21(c) and 

(d), respectively, are generally 

sufficient. However, there could be 

situations where it is difficult for law 

enforcement to differentiate between the 

two gear types while enforcing the 

closed areas or VMS regulations. 

Difficulties could arise, for example, in 

determining whether the weights and/or 

anchors are capable of maintaining 

contact between the mainline and the 

ocean bottom in the case of bottom 

longlines, or whether the floats are 

capable of supporting the mainline in 

the case of pelagic longlines. These 

difficulties could result in lengthier 

boardings at sea by law enforcement, 

temporary curtailment of fishing 

activities, and potential legal 

proceedings. For these reasons, NMFS 

sought to reexamine the current PLL 

and BLL definitions in this amendment 

to ascertain whether improvements 

were warranted. Based upon public 

comment and consultations with law 

enforcement, NMFS found that the 

current PLL and BLL definitions could 

be strengthened by establishing limits 

on the types of species that could be 

possessed when fishing in HMS closed 

areas with these gears. However, in 

order to maintain operational flexibility 

for the HMS longline fleet, and in 

recognition of the impracticality of 

defining and limiting the number of 

‘‘fishing floats’’ possessed or deployed, 

gear-based alternative I1(b) is no longer 

preferred. The overall objective of this 

issue, preserving the integrity of the 

HMS time/area closures, can effectively 

be achieved by implementing 

requirements on the species 

composition of catch. This methodology 

addresses the crux of the issue, which 

is to discourage catches of pelagic 

species in PLL closed areas (and vice 

versa), without the adverse economic 

impacts associated with additional gear 

restrictions. This method is expected to 

accommodate the majority of 

commercial fishing operations, yet still 

provide a quantifiable means to 

differentiate between PLL and BLL 

vessels. As a result, the ecological 

benefits associated with HMS closed 

areas are expected to remain intact, 

including reductions in discards of 

swordfish, bluefin tuna, dusky sharks, 

sandbar sharks, other HMS, other 


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finfish, and protected species. By 

selecting a method that relies upon the 

species composition of the catch, NMFS 

anticipates that HMS longline vessel 

operators will be prudent when fishing 

in the HMS closed areas and catch 

predominantly pelagic species in BLL 

closed areas, or demersal species in PLL 

closed areas. However, the 

establishment of quantifiable gear-based 

criteria to differentiate between PLL and 

BLL gear could still potentially offer an 

effective method to further eliminate 

ambiguities between the two gear types. 

The Agency intends to continue to 

assess the need for, and potential 

effectiveness of, gear-based criteria. If 

needed, such criteria could be 

developed in consultation with the 

fishing industry to further improve the 

monitoring of, and compliance with, 

HMS closed areas. 

Comment 2: NMFS received several 

comments indicating that HMS longline 

vessel operators need to maintain their 

operational flexibility. These comments 

include: Longline vessels need to 

maintain their ability to change between 

PLL and BLL gear in order to ensure 

versatility. For economic survival and 

efficiency, vessels often conduct both 

PLL and BLL sets on a single trip. This 

is especially true for PLL vessels that 

fish with BLL gear during rough weather 

days on a PLL trip. There will be an 

economic loss if NMFS restricts this 

flexibility; definitions for PLL and BLL 

gear should be developed to facilitate 

identification by law enforcement, 

while not precluding fishermen from 

choosing between gear types; and in 

order to allow flexibility to conduct 

both PLL and BLL sets, the final 

regulations may need to specify 

differences between active gear and gear 

onboard the boat and not in use, 

because there have been some 

enforcement errors. 

Response: NMFS recognizes that HMS 

longline vessels need to maintain their 

ability to change between PLL and BLL 

gear in order to ensure versatility. The 

reason for addressing the gear definition 

issue in this amendment was not to 

impose additional economic costs on 

longline vessels, but rather to preserve 

the conservation benefits associated 

with the HMS time/area closures. The 

HMS longline closed areas were 

implemented to protect a variety of 

HMS and other protected species. This 

protection could be compromised if 

HMS longline vessels are catching large 

amounts of pelagic species in the PLL 

closed areas, while under the guise of 

BLL fishing, and vice-versa. The critical 

factor in maintaining the integrity of the 

HMS time/area closures is, therefore, to 

ensure that the proper species are 

hooked. This could potentially be 

accomplished in a variety of ways. 

NMFS believes that establishing a limit 

on the species composition of the catch 

when fishing in the HMS closed areas 

is an efficient method to discourage 

illegal fishing activities in these areas, 

without imposing additional gear 

requirements that could restrict 

operational flexibility. As long as a 

vessel is in compliance with the current 

PLL or BLL definitions when fishing in 

the HMS closed areas, the operator will 

retain the flexibility to choose how to 

comply with the catch limits specified 

in this final rule. More importantly, 

however, these catch limits must be 

adhered to if any portion of a trip is in 

an HMS closed area. NMFS believes that 

it is not unreasonable, or unduly 

burdensome, for HMS longline vessels 

to comply with the intent of the HMS 

closed areas and to avoid pelagic or 

demersal species, especially when 

legally fishing in these areas with BLL 

or PLL gear, respectively. Because 

NMFS is implementing a species-based, 

rather than a gear-based, alternative to 

differentiate between pelagic and 

bottom longlines, a gear stowage 

provision is not necessary at this time. 

Comment 3: Comments were received 

indicating that vessel monitoring 

systems (VMS) could be used to help 

differentiate between PLL and BLL 

vessels. These comments included: 

Since VMS are already required for the 

closed areas, NMFS should establish a 

declaration system allowing the VMS 

monitors to know what gear type is 

being utilized and why. Law 

enforcement and/or observers could 

verify compliance, and impose penalties 

for non-compliance; and, it has been 

suggested that vessels ‘‘call-in’’ and 

declare their intentions prior to 

engaging in fishing in a closed area. 

This would be an unnecessary burden, 

but it is feasible. 

Response: This comment was also 

raised by both the public and the NMFS 

Office of Law Enforcement during 

scoping hearings, and was considered 

during the development of alternatives 

for the DEIS. However, NMFS decided 

against including an alternative with a 

VMS declaration because it would not 

alleviate the need for a quantifiable 

method for enforcement to use in order 

to differentiate between PLL and BLL 

gear. For example, while a vessel 

operator could declare to be fishing with 

PLL or BLL gear, enforcement officers 

would still need to verify compliance 

with the closed areas either at the dock 

or at sea. Without a quantifiable 

method, enforcement officers could 

decide that a BLL vessel that has a few 

buoys onboard and that declared itself 

a BLL vessel still meets the definition of 

a PLL vessel. With a quantifiable 

method, the enforcement officers would 

be less likely to make that 

determination. Nevertheless, there may 

be a potential benefit to a VMS 

declaration system, and NMFS will 

continue to assess the need for such a 

system. 

Comment 4: Comments opposed to 

alternative I1(b), defining BLL or PLL 

gear based on the number of floats 

onboard, included: We are strongly 

opposed to alternative I1(b); defining 

BLL and PLL gear by the number of 

floats will not work; and, alternative 

I1(b) would impose an unnecessary 

additional economic and logistic burden 

on already over-regulated fisheries. 

Response: Although the analysis in 

the Draft Consolidated HMS FMP 

indicated that relatively few HMS 

longline vessels would be affected by 

the float requirement in non-selected 

alternative I1(b), the alternative is not 

being implemented in the final rule. As 

described in Comment 2 above, several 

commenters stated that a float 

requirement would diminish the 

flexibility of vessel operators to 

participate in different fishing activities, 

depending upon the circumstances. 

Also, consultations with NMFS Office of 

Law Enforcement indicated that 

defining ‘‘fishing floats’’ and limiting 

the number that could be possessed or 

deployed would not be practical. In 

light of these concerns, NMFS believes 

that the overall objective of this issue, 

preserving the integrity of the HMS 

time/area closures, can effectively be 

achieved by implementing a method 

that relies upon the species composition 

of catch and the existing PLL and BLL 

definition. By not implementing a 

restriction on the allowable number of 

floats, potential adverse economic 

impacts associated with additional gear 

restriction should be mitigated 

Comment 5: NMFS received many 

comments regarding the float 

requirement in alternative I1(b), and 

suggestions for developing other gearbased methods to better differentiate 

between PLL and BLL. These comments 

include: There is some confusion in 

preferred alternative I1(b) between the 

terminology that the industry is 

accustomed to using versus what NMFS 

is using; how do the proposed 

regulations define PLL and BLL gear 

and floats?; floats are used for recovery 

and monitoring sections of the gear. The 

types of mainline and anchor are related 

to where the gear is fishing in the water 

column. The mainline and anchors 

onboard a vessel would be better 

indicators of what type of longline gear 

is onboard a vessel; if NMFS proceeds 


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with alternative I1(b), it is important to 

make sure that an anchor ball is 

accounted for in the float enumeration; 

there is no critical need for BLL vessels 

to possess ‘‘bullet’’ type floats. Such 

floats can be replaced with polyballs on 

BLL vessels at minimum costs. On the 

contrary, PLL vessels must carry large 

quantities of both polyball and ‘‘bullet’’

floats, this difference would enable 

enforcement officers to differentiate 

between PLL and BLL vessels while 

underway and/or fishing. NMFS could 

allow PLL vessels to retain the 

necessary flexibility if they required all 

‘‘bullet’’ type floats to be stowed below 

deck and/or completely covered before 

engaging in BLL fishing in a PLL closed 

area. It would be awkward but it is 

feasible; NMFS enforcement should not 

require an adjustment to the definition. 

A PLL vessel is easy to spot by the 

amount of ‘‘bullet’’ floats and balls. 

While deployed, the gear is easy to 

determine by the consecutive ‘‘bullet’’

floats along the line. When a PLL vessel 

is engaged in BLL fishing, there is no 

consecutive string of ‘‘bullet’’ floats and 

a BLL vessel does not require hundreds 

of bullet floats; and, on the Grand 

Banks, fishermen use polyballs, bullet 

floats and radio buoys, but I do not 

know the exact number of each; Radio 

buoys are probably used more with PLL 

than with BLL gear. 

Response: NMFS appreciates these 

comments. The proposed regulations 

did not contain new definitions for PLL 

and BLL gear, and did not define 

‘‘fishing floats.’’ Rather, comments were 

specifically requested on potential 

definitions for ‘‘fishing floats.’’ While 

differences between PLL and BLL gear 

might be readily apparent, these 

comments highlight the difficulties 

associated with developing definitions 

that are quantifiable, understandable, 

practical, enforceable, and can 

accommodate a variety of different 

fishing techniques. These limitations 

greatly restrict the ability to develop 

practical, quantifiable definitions for 

PLL and BLL gear that are 

improvements over the existing 

definitions. For these reasons, and for 

those discussed in the response to 

Comment 1 above, NMFS believes that 

the current PLL and BLL definitions do 

not require significant modification, but 

can be strengthened by establishing 

limits on the types of species that can 

be possessed when fishing in HMS 

closed areas. In order to maintain 

operational flexibility for the HMS 

longline fleet, and in recognition of the 

impracticality of defining and limiting 

the number of ‘‘fishing floats’’ possessed 

or deployed, the allowable number of 

floats is not limited. Nevertheless, the 

establishment of quantifiable gear-based 

criteria to differentiate between PLL and 

BLL gear using the recommendations 

contained in this comment could help 

to eliminate ambiguity between gear 

types in the future, if necessary. NMFS 

will continue to assess the need for, and 

potential effectiveness of, gear-based 

criteria. If needed, such criteria could be 

developed in consultation with the 

fishing industry to further improve the 

monitoring of, and compliance with, 

HMS closed areas. 

Comment 6: Comments regarding the 

numbers of floats specified in 

alternative I1(b) included: The number 

of floats proposed for the PLL/BLL 

designation in alternative I1(b) (i.e., 71 

or more floats for PLL) is appropriate, 

but fishermen could run into trouble 

with enforcement during test sets. These 

are sets fishermen use to determine 

what fish, if any, are in the area. Test 

sets are usually shorter and have fewer 

floats; NMFS is proposing too many 

floats to differentiate between BLL and 

PLL gear in alternative I1(b). BLL gear 

would have far fewer floats. Most BLL 

may have two to four floats with maybe 

a 12 to 15 maximum; and, a fisherman 

may do a short PLL set that would have 

less than 71 floats when fishing in 

closed areas and might be able to catch 

demersal fish, like sandbar sharks, on 

PLL gear. 

Response: Based upon an analysis of 

the HMS logbook in the Draft 

Consolidated HMS FMP, NMFS believes 

that the number of floats specified in the 

proposed rule to differentiate between 

PLL and BLL gear was appropriate. The 

analysis indicated that at least 90 

percent of all reported BLL sets in 2002 

and 2003 possessed fewer than 70 floats, 

and approximately 95 percent of all 

reported PLL sets in 2002 and 2003 

possessed more than 70 floats. However, 

public comment indicated that, in some 

instances, the float requirement could 

adversely affect operational flexibility. 

For this reason, and the others 

discussed in the responses to Comments 

4 and 5 above, the allowable number of 

floats is not being limited. NMFS 

believes that the concern expressed in 

this comment regarding catching 

demersal fish on PLL gear in BLL closed 

areas will be adequately addressed by 

the final management measures, that 

limit the amount of species (either 

pelagic or demersal, as appropriate) that 

may be possessed or landed from HMS 

closed areas. 

Comment 7: Alternative I1(b) may 

assist in defining ‘‘greenstick gear’’ by 

specifying the numbers of floats for 

pelagic and bottom longlines. 

Response: The issues involved in 

defining ‘‘greenstick gear’’ are addressed 

in the Authorized Fishing Gear section. 

NMFS is not implementing management 

measures that would specify the 

allowable number of floats for PLL and 

BLL gear. If needed in the future, NMFS 

may consider distinguishing between 

greenstick and longline gear based upon 

the allowable number of floats. 

Comment 8: NMFS received 

comments in opposition to alternative 

I1(c), including: I vehemently oppose 

preferred alternative I1(c) which 

differentiates between BLL and PLL gear 

based upon the species composition of 

the catch. There is no difference 

between PLL and BLL gear. BLL gear 

takes so long to set and retrieve that it 

can kill pelagic species while the hooks 

are being retrieved. Enforcement will be 

ineffective on this alternative. What is a 

vessel considered to be, PLL or BLL, 

after it has just switched from one mode 

to the other prior to harvest in the 

second mode?; and, I am opposed to this 

alternative because it will limit the 

abilities of the directed shark fishery. 

Response: There is a difference 

between PLL and BLL gear. PLL gear 

fishes for pelagic species in the water 

column, while BLL gear fishes for 

demersal species and is in contact with 

the seafloor. Although the gears can 

each catch both types of species, the 

catch rates of demersal and pelagic 

species are very different between the 

gears. This fact is evident in the Coastal 

logbook where, on average, from 2000 - 

2004, over 95 percent of the reported 

landings were demersal ‘‘indicator’’

species, as measured relative to the total 

amount of ‘‘indicator’’ species. 

Similarly, in the PLL logbook, from 

2000 - 2004, on average, over 95 percent 

of the reported landings were pelagic 

‘‘indicator’’ species, as measured 

relative to the total amount of 

‘‘indicator’’ species. For this reason, a 

5–percent threshold of pelagic and 

demersal ‘‘indicator’’ species will be 

established for BLL and PLL gear, 

respectively, on trips fishing in HMS 

time/area closures. NMFS recognizes 

that a small percentage of species caught 

on BLL and PLL gear will be the 

unavoidable bycatch of pelagic and 

demersal species, respectively. Also, the 

logbook data indicate that the 5–percent 

threshold would have been exceeded on 

a fishery-wide basis in 2004, whereas 

both fisheries (PLL and BLL) would 

have been well below the threshold 

from 2000 - 2003. If necessary, both the 

5–percent threshold and the list of 

indicator species can be modified in the 

future based upon a review of current 

and historic landings and the 

effectiveness of the regulation. 


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Presently, the Agency does not expect 

that the final rule implementing a 5–

percent threshold will significantly 

limit the abilities of either fishery. 

NMFS further believes that it is not 

unreasonable, or unduly burdensome, 

for HMS longline vessels to comply 

with the intent of the HMS closed areas 

and avoid pelagic or demersal species, 

especially when legally fishing in these 

areas with BLL or PLL gear, 

respectively. If any portion of an HMS 

longline trip occurs within a BLL or PLL 

closed area, then that vessel would be 

required to adhere to the 5–percent 

threshold for pelagic or demersal 

species, respectively. This management 

measure is readily enforceable, either 

through dockside verification of 

landings or by at-sea boardings. If 

difficulties arise in determining whether 

a vessel is fishing with PLL or BLL gear 

in a closed area using the existing 

definitions, the species composition of 

catch methodology will provide a 

quantifiable method to verify fishing 

technique. 

Comment 9: Comments specifically 

referencing the 5–percent species 

composition threshold for 

differentiating between gears include: In 

order to differentiate between PLL and 

BLL gear, NMFS should prevent 

fishermen with BLL gear from landing 

any pelagic species in preferred 

alternative I1(c). This prohibition would 

eliminate the profit incentive and 

motive for violating closed areas and 

manipulating set time, depth at which 

gear is set, and the number of buoys; I 

am opposed to the 5–percent tolerance 

for species because there is too much 

variability in the catch. This ratio could 

also be problematic when combined 

with the alternative addressing dealers 

and vessels buying and selling fish in 

excess of retention limits, because there 

is no room for error and no way to 

dispose of catch that is useful; NMFS 

must make sure that the species 

composition lists in preferred 

alternative I1(c) are complete enough to 

allow for gear definitions based on 

species; and, tilefish should be added to 

the list of demersal indicator species. 

Response: NMFS appreciates these 

comments. As discussed above in the 

response to Comment 8, both types of 

gear can occasionally catch both types 

of ‘‘indicator’’ species, pelagic and 

demersal. The establishment of a zerotolerance for pelagic ‘‘indicator’’ species 

when fishing in PLL closed areas with 

BLL gear could create a situation where 

regulatory discards occur, due to the 

unavoidable bycatch of pelagic species. 

The final rule strikes an appropriate 

balance by establishing a 5–percent 

tolerance, which should discourage 

directed fishing on pelagic species by 

BLL vessels and vice-versa, but not 

increase regulatory discards. Data from 

the Coastal and HMS logbooks indicate 

that, on average, vessels remained below 

this threshold from 2000 - 2004, 

although it would have been exceeded 

in 2004. Based upon public comment, 

NMFS has modified the list of demersal 

‘‘indicator’’ species by removing 

hammerhead and silky sharks, and by 

adding tilefish to the list. If necessary, 

both the 5–percent threshold and the 

list of indicator species could be 

modified in the future based upon a 

review of current and historic landings. 

Comment 10: More enforcement time 

should be spent at the docks rather than 

spending resources on investigating 

boats at sea. At-sea enforcement of 

alternative I1(c) could initiate 

unnecessary de-icing of fish in the hold 

while at sea, which has a substantial 

economic impact. 

Response: As discussed above in the 

response to Comment 8, this final rule 

is readily enforceable, either through 

dockside verification of landings or by 

at-sea boardings. If difficulties arise in 

determining whether a vessel is fishing 

with PLL or BLL gear in a closed area 

using the existing definitions, the 

species composition of catch 

methodology will provide a quantifiable 

method to verify fishing technique. 

Comment 11: The Gulf of Mexico 

Fishery Management Council and others 

have recommended that the preferred 

alternative be changed from I1(b) to 

I1(e); Base HMS time/area closures on 

all longlines (PLL and BLL); alternative 

I1(e) would be the easiest alternative to 

enforce. This is the only way to achieve 

a meaningful reduction in bycatch; 

billfish feed throughout the water 

column. To provide the proper 

protection needed, both types of 

longline gear should be prohibited from 

closed areas; alternative I1(e) should 

also prohibit buoy gear from the closed 

areas; alternative I1(e) is the only way 

to reduce bycatch and facilitate 

enforcement; and, how deep must BLL 

gear be set before it does not adversely 

affect pelagic species? 

Response: NMFS agrees that the 

alternative to base all closures on both 

PLL and BLL gear would be the easiest 

to enforce. However, this final rule 

limiting bycatch is expected to be very 

effective at preserving the conservation 

benefits associated with the closed 

areas, while simultaneously mitigating 

adverse economic impacts on longline 

vessels fishing in the closed areas. 

When deployed and fished properly, 

available logbook information suggests 

that BLL and PLL gear can be set and 

retrieved with only minor impacts on 

pelagic and demersal species, 

respectively. Closing these areas to all 

gears, therefore, would impose 

economic costs while achieving only 

minimal ecological benefits. NMFS 

anticipates that HMS longline vessels 

will continue to catch predominantly 

pelagic species in BLL closed areas, and 

demersal species in PLL closed areas. 

NMFS does not agree that areas closed 

to PLL or BLL gear also need to be 

closed to buoy gear. As discussed in the 

Authorized Fishing Gears section, 

NMFS is authorizing buoy gear in the 

commercial swordfish handgear fishery 

with gear marking requirements and 

limits on the number that may be 

deployed. These measures will prevent 

the uncontrolled future expansion of 

this gear sector, while simultaneously 

providing a reasonable opportunity for 

the U.S. to harvest its ICCAT swordfish 

quota. 

ii. Shark Identification 

Comment 12: We support alternative 

I2(a) which would retain the current 

regulations regarding shark landing 

requirements (No Action) because the 

preferred alternative, I2(b), could have a 

negative economic impact on the fish 

houses due to degradation of the 

product. The sharks could be exposed to 

heat after unloading and weighing, 

instead of going directly into the ice vats 

after weighing. It costs time and money 

to stop and try to cut off all the 

secondary fins, particularly small ones 

after the boat has docked and the fish 

house has began the unloading efforts. 

Response: In an effort to improve data 

collection, quota monitoring, and stock 

assessments of shark species, the 

Agency is implementing measures 

requiring that the second dorsal and 

anal fins remain on all sharks through 

landing. While offloading and 

processing procedures may have to be 

adjusted initially, NMFS believes that 

efforts to improve shark identification 

and enforcement of regulations will 

improve the overall status of the shark 

fishery. These measures are an 

intermediate action, relative to noaction and requiring all fins on all 

sharks, in terms of economic impacts, in 

that the second dorsal and anal fins are 

typically the least valuable and are 

usually sold as the lowest quality grade. 

Either the dealer or the fishermen can 

remove these fins after landing. If 

removing the fins at the dock becomes 

problematic, it is possible that 

fishermen could pre-cut fins, so that 

they are only partially attached, to 

decrease processing time. Alternatively, 

dealers could remove the fins later 

when processing the rest of the carcass. 


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Comment 13: NMFS received the 

following comments supporting the 

alternative to require the second dorsal 

and anal fins on all sharks: I support the 

preferred alternative; these measures 

will greatly enhance species-specific 

shark landing data and improve 

identification; retention of the second 

dorsal fin and anal fins of landed 

sharks, including nurse and lemon 

sharks, will improve quota monitoring, 

prohibited species enforcement, and 

species-specific identification of sharks; 

and, lemon sharks and great 

hammerheads have valuable fins- they 

should be ok to remove after landing. 

Response: The final rule is expected 

to generate ecological benefits by 

enhancing and improving species 

identification and data collection, 

particularly in coordination with the 

final management measures requiring 

shark dealer identification workshops, 

thereby leading to improved 

management and a sustainable fishery. 

Comment 14: Maintaining the second 

dorsal and anal fins on all sharks will 

do little to improve shark identification. 

Response: The second dorsal and anal 

fins of sharks vary in color, shape, and 

size (relative to the body). While 

retaining these fins may not allow all 

shark species to be distinguished from 

each other, NMFS believes that it will 

aid shark identification at landing, 

which, in conjunction with species 

identification workshops, should reduce 

the number of unclassified sharks being 

reported. While retaining these fins is 

expected to enhance identification, 

other alternatives allowing these fins to 

remain on nurse and lemon sharks 

could confuse identification by allowing 

some sharks to be completely finned, 

and could have adverse ecological 

impacts. 

iii. HMS Retention Limits 

Comment 15: NMFS received the 

following comment in support of the no 

action alternative I3(a): Proceeds from 

fish caught in excess of a vessel’s trip 

limit should be donated to NMFS to 

help fund the observer program up to a 

certain limit, such as 5 percent, and 

fishermen should get fined for anything 

above that percentage. 

Response: For each of the regulated 

HMS, specific trip limits have been 

developed based upon a number of 

biological, social, and/or economic 

reasons, such as the nature of the trip 

(commercial or recreational), the gear 

types used to harvest the fish, or the 

status of the stock in question. Thus, 

tolerance limits need to be developed 

for each individual species on a fisheryby-fishery basis, and may not be 

appropriate for all regulated species. 

Also, even with tolerance limits, the 

likelihood of exceeding these limits 

would still exist and NMFS would 

likely continue to receive comments to 

adjust the limit or tolerance limit. The 

suggestion to fund the observer program 

through proceeds from fish landed 

above the trip limit raises a number of 

practical and legal concerns. If these 

concerns can be satisfactorily resolved, 

NMFS may consider this suggestion in 

the future, as needed. 

Comment 16: Because NMFS is 

considering measures to strengthen 

HMS retention limits, does this mean 

that we are currently allowed to exceed 

the retention limits? 

Response: No. Currently all vessels 

fishing for, retaining, or possessing 

Atlantic HMS, with the intent to sell 

that catch, must abide by the 

commercial retention limits as stated in 

§§ 635.23 and 635.24. The current 

prohibitions located in § 635.71 

reinforce the applicability of these 

commercial limits. The final rule 

implements new prohibitions making it 

illegal for any person to purchase or sell 

any HMS from an individual vessel in 

excess of the commercial retention 

limits. As such, dealers or buyers of 

HMS in excess of commercial retention 

limits will be held responsible for their 

actions. These prohibitions are intended 

to improve compliance with HMS 

retention limits by extending the 

regulations to both of the parties 

involved in a transaction. They will 

reinforce and clarify other existing 

regulations regarding landings of HMS 

in excess of commercial retention limits. 

Comment 17: NMFS received 

comments both in support of and 

opposition to alternatives I3(b) and 

I3(c). Those comments in support stated 

that NMFS needs to make all parties 

involved in a violation of the fishery 

regulations accountable, both vessel 

owners and dealers regardless if they are 

commercial or recreational. Those 

comments opposed stated: Alternatives 

I3(b) and I3(c) eliminate flexibility when 

it comes to shark landings. As scales are 

not used on small boats, vessel owner/ 

operators can only estimate a trip limit 

at sea based upon a carcass count and 

an estimated average weight; and, 

concerns exist regarding the 5–percent 

shark fin/body ratio. The ratio is not 

correct as it was based on one species. 

Thus, we need to have species-specific 

ratios for these alternatives to be fair. 

Response: The final rule is intended 

to improve compliance with HMS 

retention limits by extending the 

regulations to both of the parties 

involved in a transaction where HMS 

exceeding trip limits are sold or 

purchased. It will also reinforce and 

clarify other existing regulations 

regarding landings of HMS in excess of 

commercial retention limits. As with 

any limitation on catch, vessel owner/ 

operators must use their experience and 

professional judgment in determining 

where their harvest stands in regard to 

catch/possession/trip limits to ensure 

that they do not exceed the limits. 

Regarding the 5–percent tolerance limit 

on shark fins, this limit is currently 

dictated by the Shark Finning 

Prohibition Act. NMFS cannot alter this 

limit. 

Comment 18: In addition to the 

selected alternatives, NMFS should 

enforce the existing prohibition on the 

sale of recreationally caught HMS. 

NMFS should levy heavy fines and 

permanent permit sanctions on the 

fishermen, vessel owner, and buyer if 

any bag limit fish are sold, traded, or 

bartered. NMFS should implement 

additional restrictive provisions in the 

Final Consolidated HMS FMP to 

prevent the illegal sale of recreational 

catches. 

Response: The current suite of 

regulations and prohibitions contained 

in 50 CFR part 635 address the illegal 

sale, trade, and bartering of 

recreationally landed HMS. As the range 

of violations regarding these types of 

activities can vary greatly, the current 

penalty schedule provides enforcement 

agents and prosecutors with the 

flexibility to determine a suitable fine, 

based on information pertaining to each 

specific infraction. 

iv. Definition of ‘‘East Florida Coast 

Closed Area’’

Comment 19: NMFS received 

contrasting comments on preferred 

alternative I4(b), which would modify 

the outer boundary of the East Florida 

Coast Closed Area so that it corresponds 

with the EEZ. These comments include: 

I support alternative I4(b), which 

amends the coordinates of the Florida 

East Coast closure; and, I am opposed to 

expanding any of the existing closed 

areas, including the East Florida Coast 

closed area described in preferred 

alternative I4(b). The PLL fleet needs 

every inch of available fishing grounds. 

Response: NMFS does not expect a 

reduction in HMS catches associated 

with the final rule because the 

geographic size increase is very small 

(0.5 nm) and, according to the PLL 

logbook data, there have not been any 

recent catches or PLL sets in this area. 

Fishing effort that would have occurred 

in this area will likely relocate to nearby 

open areas with similar catch rates. 

Therefore, overall fishing effort is not 

expected to change as a result of the 

final rule. NMFS is correcting the 


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coordinates to reflect the original intent 

of the East Florida Coast closed area to 

extend to the outer boundary of the EEZ. 

v. Definition of ‘‘Handline’’

Comment 20: I support preferred 

alternative I5(b), which requires that 

handlines be tied to the boat. If it is tied 

to the boat it is a handline, if it is not, 

it is a longline. 

Response: NMFS is implementing the 

referenced alternative which will 

require that all handlines remain 

attached to, or in contact with, a vessel. 

However, by authorizing buoy gear in 

the commercial swordfish handgear 

fishery (see Authorized Fishing Gears), 

unattached lines will not, by default, 

automatically be considered longline 

gear. Buoy gear will be authorized only 

in the commercial swordfish handgear 

fishery with gear marking requirements, 

hook limitations, and limits on the 

number that may be deployed. Both 

handlines and buoy gear will still be 

limited to no more than two hooks per 

line. 

Comment 21: We support alternative 

I5(c), which would require fishermen to 

attach their handlines to their vessels, 

because handlines should remain as 

recreational gear (attached to the vessel) 

and buoy gear should be designated as 

commercial gear. However, there are 

times when fishermen need to detach 

their handlines, particularly when a 

large captured fish has spooled several 

reels, in order to retrieve the gear. Is that 

now going to be prohibited? 

Response: Buoy gear will be 

authorized only for the commercial 

swordfish fishery. However, handlines 

are, and will continue to be, authorized 

in both commercial and recreational 

fisheries. The final rule requires that 

handlines remain attached to a vessel. It 

does not change which fisheries the gear 

is authorized for. The situation where a 

large fish spools several reels and must 

be ‘‘tethered-off’’ to retrieve the gear 

and/or the fish is an uncommon, but not 

rare, occurrence. The important factor in 

determining if this is an allowable 

practice is whether or not the handline 

was attached to the vessel when the fish 

was first hooked. Primarily to facilitate 

safety at sea, the handline could be 

‘‘tethered-off’’ if it was attached to the 

vessel when the fish was hooked. NMFS 

anticipates that these situations will 

need to be examined on a case-by-case 

basis, in consideration of the 

circumstances affecting the decision to 

detach the handline. 

Comment 22: How is the definition of 

‘‘handline gear’’ different from the 

‘‘buoy gear’’ definition? 

Response: In the final rule, the main 

difference between the two gears is 

whether or not the gear is attached to a 

vessel. If the gear is attached, it would 

be considered handline and could be 

used, with the appropriate permits, in 

any of the tunas, swordfish, or shark 

fisheries. If the gear is not attached, it 

will be considered buoy gear and can 

only be used in the commercial 

swordfish handgear fishery. 

Specifically, handlines are defined as 

fishing gear that is attached to, or in 

contact with a vessel; that consists of a 

mainline to which no more than two 

hooks or gangions may be attached; and 

that is released and retrieved by hand 

rather than by mechanical means. Buoy 

gear is authorized for the commercial 

handgear fishery, and consists of one or 

more floatation devices supporting a 

single mainline to which no more than 

two hooks or gangions are attached. 

Buoy gear is required to be constructed 

and deployed so that the hooks are 

attached to the vertical portion of the 

mainline. Flotation devices may be 

attached to one, but not both ends of the 

mainline, and no hooks or gangions may 

be attached to any horizontal portion of 

the mainline. If more than one floatation 

device is attached to a buoy gear, no 

hook or gangion is allowed to be 

attached to the mainline between them. 

Individual buoy gears may not be 

linked, clipped, or connected together 

in any way. All buoy gears are required 

to be released and retrieved by hand. 

Fishermen using buoy gear will also be 

required to affix monitoring equipment 

to each individual buoy gear. Gear 

monitoring equipment may include, but 

is not limited to, radar reflectors, beeper 

devices, lights, or reflective tape. If only 

reflective tape is used, the vessel 

deploying the buoy gear is required to 

possess an operable spotlight capable of 

illuminating deployed flotation devices. 

Additionally, a floatation device is 

defined as any positively buoyant object 

rigged to be attached to a fishing gear. 

Comment 23: Are floating handlines 

being used to catch juvenile swordfish 

in the East Florida Coast closed area? 

Response: Available HMS logbook 

data from 2000 to 2004 indicate that the 

‘‘handline-only’’ fishery grew 

significantly in 2004, and that catches 

and discards of swordfish in the 

‘‘handline-only’’ fishery increased as 

well. However, the HMS logbook does 

not differentiate between ‘‘attached’’

and ‘‘unattached’’ handlines, and 

recreational data are limited. Given 

these limitations, it is not possible to 

determine conclusively if floating 

handlines are being used to catch 

juvenile swordfish in the East Florida 

Coast closed area. However, given that 

the legal minimum size is below the size 

of maturity, the average size of 

swordfish caught across all fisheries is 

below the size of maturity. Because the 

area off the east coast of Florida is a 

known nursery ground for swordfish, it 

is likely that any fishing gear, including 

rod and reel or handline, used to catch 

swordfish off the east coast of Florida 

catches juvenile swordfish. 

vi. Possession of Billfish on Vessels 

Issued HMS Commercial Permits 

Comment 24: What types of permits 

would be affected by preferred 

alternative I6(b), which prohibits vessels 

issued commercial permits and 

operating outside of a tournament from 

possessing or taking Atlantic billfish? 

Response: Under the final rule, only 

persons issued an HMS Angling or HMS 

Charter/Headboat, or who have been 

issued an Atlantic Tunas General 

Category permit and are participating in 

a registered HMS tournament, are 

allowed to possess or take an Atlantic 

billfish. Persons issued only Federal 

swordfish, shark, or Atlantic Tunas 

permits (including General Category 

permits outside of registered HMS 

tournaments) are not allowed to possess 

or take an Atlantic billfish. Persons 

issued both commercial and recreational 

HMS permits can take billfish, but only 

if the HMS species possessed onboard 

the vessel do not exceed the HMS 

recreational retention limits. 

Comment 25: NMFS needs to make 

sure that the language in preferred 

alternative I6(b) is very clear in 

specifying that a commercial permit 

refers to HMS commercial fisheries. 

Response: The regulations clarify that 

only persons issued an HMS Angling or 

HMS Charter/Headboat, or who have 

been issued an Atlantic Tunas General 

Category permit and are participating in 

a registered HMS tournament, may 

possess or take an Atlantic billfish. 

Persons issued non-HMS commercial 

permits may possess or take Atlantic 

billfish only if they have also been 

issued the appropriate HMS permits. 

Comment 26: NMFS received several 

comments in support of, or in 

opposition to, the preferred alternative 

I6(b) including: I support preferred 

alternative I6(b) until Atlantic billfish 

stocks are rebuilt; we support 

prohibiting commercial vessels from 

possessing, retaining, or taking Atlantic 

billfish (alternative I6(b)); I support 

preferred alternative I6(b), because it 

would help to eliminate gillnet fisheries 

that kill billfish and other non-target 

species; I am opposed to preferred 

alternative I6(b) because all commercial 

vessels should be able to retain 

recreational bag limits; and, the 

preferred alternative I6(b) would have 


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more negative impacts than NMFS has 

listed presently in the DEIS. 

Response: The final rule clarifies that 

commercial HMS vessels cannot possess 

or take Atlantic billfish. The regulations 

also clarify that the current Atlantic 

billfish fishery is a recreational fishery 

and that Atlantic billfish may only be 

possessed or retained when taken 

recreationally by rod and reel. These 

measures do not eliminate any existing 

fisheries, but indicate that commercial 

fishermen onboard gillnet or bottom 

longline vessels cannot retain a billfish 

taken with rod and reel for personal use, 

unless the vessel possesses both the 

recreational and commercial permits 

(e.g., a commercial shark limited access 

permit and an HMS Charter/Headboat 

permit) and if the other HMS onboard 

did not exceed the HMS recreational 

retention limits. Furthermore, General 

Category fishermen fishing for Atlantic 

tunas with rod and reel may not possess 

billfish outside of registered HMS 

tournaments. To the extent that some 

fishermen with commercial HMS 

permits may take billfish, there could be 

minimal impacts on commercial 

fishermen taking billfish for personal 

use. Current regulations do not allow 

commercial HMS fishermen to take 

recreational limits of HMS. NMFS 

believes that few commercial HMS 

fishermen take billfish, this alternative 

clarifies the regulations, and reinforces 

the recreational nature of the Atlantic 

billfish fishery. Once Atlantic billfish 

are rebuilt, NMFS may consider 

alternatives to allow persons issued 

HMS commercial permits to possess a 

limited number of Atlantic billfish for 

personal use. 

vii. Bluefin Tuna Dealer Reporting 

Comment 27: I support preferred 

alternative I7(b), which would allow 

tuna dealers to submit their required 

reports using the Internet; NMFS should 

move towards alternative I7(c), which 

would require mandatory internet 

reporting, as soon as possible. 

Response: Due to the importance 

NMFS places on reporting, the Agency 

wants to ensure that reporting is both 

convenient and fair for all user groups. 

Mandatory Internet reporting will not be 

implemented until NMFS is confident 

that such an action will not impede the 

reporting process. 

viii. ‘‘No-Fishing’’, ‘‘Cost-Earnings’’, and 

‘‘Annual Expenditures’’ Reporting 

Forms 

Comment 28: I support preferred 

alternative I8(b), which requires the 

submission of ‘‘no-fishing’’ forms. Is 

there latitude with logbooks coming in 

from different countries? If you do not 

have all the parts of the logbook 

submission, should you send in what 

you have or wait until you have 

everything? For instance, I often do not 

have the offload tally by the time the 

logbook is due (seven days after 

offloading). 

Response: As specified in the Atlantic 

HMS regulations 50 CFR 635.5, owners 

of vessels issued an HMS permit must 

submit a fishing record that reports the 

vessel’s fishing effort, and the number of 

fish landed and discarded. This 

information should be entered in the 

logbook within 48 hours of completing 

that day’s activities on a multi-day trip, 

or before offloading on a single day trip. 

Additionally, if HMS are sold, the vessel 

owner must acquire copies of the weigh 

out slips for submittal with the logbook 

forms. All forms must be postmarked 

within seven days of offloading HMS, 

regardless of offloading location. The 

final rule does not change these 

requirements. 

ix. Non-Tournament Recreational 

Landings Reporting 

Comment 29: Vessel owners should 

not have to report their recreationallycaught fish because they are often too 

busy (e.g., absentee boat owners that fly 

into Florida from New York City for the 

weekend). 

Response: Because vessel owners are 

issued HMS permits, the recreational 

non-tournament reporting requirement 

should logically, and for compliance 

purposes, be the responsibility of vessel 

owners. Furthermore, since vessel 

owners are the permit holders, they are 

more likely to be familiar with the 

regulations governing their fishery than 

non-permitted anglers who might be 

onboard, possibly for just a day on a 

charter trip. The final rule will achieve 

better consistency with other HMS 

recreational reporting requirements, and 

may also enhance the accuracy of, and 

compliance with, non-tournament HMS 

recreational data collection. However, in 

response to this comment and other 

comments, NMFS has slightly modified 

the proposed regulations to allow an 

owner’s designee to report nontournament recreational landings of 

Atlantic billfish and swordfish. The 

vessel owner will still be held 

responsible for reporting, but the 

owner’s designee may fulfill the 

requirement. 

x. Pelagic Longline 25 mt NED 

Incidental BFT Allocation 

Comment 30: NMFS should clarify 

whether ‘‘carryover’’ provisions would 

apply to the underharvest of the 25 mt 

NED BFT quota set-aside described in 

alternative I10(b). 

Response: The alternative that was 

formerly preferred in the Draft 

Consolidated HMS FMP would have 

clarified that carryover procedures 

apply to the NED set-aside, and that any 

under/overharvest of the 25 mt (ww) 

NED set-aside would be carried forward 

into, or deducted from, the subsequent 

fishing year’s set-aside allocation. This 

alternative was originally preferred in 

the Draft Consolidated HMS FMP, but 

after subsequent analysis of the 

recommendation and in response to 

comments seeking clarification, the 

Agency has determined that the ICCAT 

recommendation provides the flexibility 

to avoid some of the potential negative 

consequences associated with the 

carryover provisions of alternative 

I10(b). Alternative I10(c) is now the 

preferred alternative. 

Comment 31: NMFS received a 

comment in support of alternative 

I10(b), which would allocate 25 mt (ww) 

for PLL incidental catch in the NED 

each year. 

Response: This alternative was 

originally preferred in the Draft 

Consolidated HMS FMP, because NMFS 

believed that its interpretation would 

provide consistency between the 

regulations and operational practices 

regarding rollovers and final set-aside 

quotas in excess of 25 mt (ww). 

However, since publication of the Draft 

Consolidated HMS FMP, additional 

analysis of the ICCAT recommendation 

indicated that the previously preferred 

alternative, I10(b), might have some 

potential negative consequences that 

could be avoided. Thus, under 

alternative I10(b), incidental BFT 

landings from the NED Statistical area 

would be accounted for in this specific 

set-aside quota and any under/ 

overharvest of the set-aside quota would 

have been added to, or deducted from, 

the following year’s baseline quota 

allocation of 25 mt (ww). The under/ 

overharvest accounting procedures 

contained in this alternative may have 

some potentially adverse ecological 

impacts. Specifically, if the NED setaside was not attained in multiple 

successive years, the set-aside quota 

could increase quite dramatically and, 

as the wording in the ICCAT 

recommendation specifically allocates 

this quota to the longline sector of the 

U.S. fleet, NMFS would not have the 

flexibility to transfer this quota to the 

Reserve or to another domestic user 

group, to avoid a ‘‘stockpiling’’ situation 

from occurring. An unrestrained buildup of the incidental NED set-aside BFT 

quota may eventually undermine the 

intent of the set-aside itself by leading 

to additional effort being deployed in 

the NED, and potentially providing an 


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incentive to direct additional effort on 

BFT. For example, this set-aside could 

increase to a level that makes it more 

attractive for PLL vessels to target BFT, 

which could possibly result in negative 

impacts to BFT stocks. Therefore, this 

alternative is no longer preferred and, 

instead, alternative I10(c) is preferred. 

Alternative I10(c) will not carry forward 

any under/overharvest, until such time 

as further ICCAT discussions regarding 

quota rollovers are conducted. 

xi. Permit Condition for Recreational 

Trips 

Comment 32: NMFS received 

comments in support of preferred 

alternative I11(b) including: We support 

preferred alternative I11(b) because it 

will enhance Atlantic shark 

conservation efforts while ASMFC 

develops an interstate FMP; and, I 

support the presumption that an HMS 

onboard a vessel was caught in Federal 

waters, because the current regulations 

cause enforcement problems. 

Response: NMFS agrees that this final 

rule will enhance HMS conservation 

efforts and will improve the 

enforcement of HMS regulations. 

Currently, in many states, fishermen are 

able to bypass both Federal and state 

regulations by stating they were fishing 

in state waters, rather than Federal 

waters, or vice versa. Under this rule, 

recreational fishermen fishing in 

Federal waters, who have a Federal 

permit, must comply with the more 

restrictive regulation if they are 

obtaining a Federal permit. Recreational 

fishermen who do not have a Federal 

permit will continue to have to comply 

with only state regulations. Thus, as a 

result of this final rule, enforcement 

officers will no longer need a statement 

from a fisherman with a Federal permit 

regarding where the fish was caught. 

Rather, they will be able to take 

enforcement action under the more 

restrictive regulations. This requirement 

has been in place for a number of years 

for shark and swordfish commercial 

fishermen and has been useful in 

enforcing commercial regulations. 

Comment 33: Will NMFS consider the 

full suite of regulations implemented by 

states with regard to HMS or will it 

simply look at each regulation 

individually? How does NMFS intend to 

define ‘‘strict?’’

Response: Each situation will need to 

be examined on a case-by-case basis; 

however, it is likely that the regulations 

will be enforced individually rather 

than as a suite. For instance, if a state 

has a larger bag limit and larger 

minimum size than the Federal 

regulations, the fishermen will be 

limited by both the Federal bag limit 

and the state minimum size. 

Comment 34: NMFS could say that all 

HMS vessels with Federal permits 

(instead of just recreational-permitted 

vessels) should comply with Federal 

regulations when in Federal or state 

waters. 

Response: NMFS already has a 

requirement in place for commercial 

shark and swordfish fishermen. NMFS 

also has the authority, under the 

Atlantic Tunas Convention Act (ATCA), 

to manage Atlantic tunas all the way to 

shore for most states. This final rule will 

improve the enforcement of the 

remaining fisheries (recreational shark, 

swordfish, and billfish) without 

superseding the regulations of the states. 

Thus, the final rule will allow states to 

establish their own regulations for 

shark, swordfish, and billfish fishermen 

who are fishing only within state waters 

(Maine and Connecticut can also 

establish their own regulations for 

Atlantic tunas). NMFS has the authority 

to pre-empt states regarding HMS under 

both the Magnuson-Stevens Act and 

ATCA. However, NMFS prefers to work 

with states and the Atlantic and Gulf 

States Marine Fisheries Commissions 

towards consistent regulations that meet 

both international and domestic goals, 

because each state is different and the 

fishermen in each state prefer to fish for 

different HMS and use different gears. If 

necessary to ensure rebuilding under 

the HMS FMP or under an ICCAT 

Rebuilding Program, NMFS may 

consider pre-empting state authority for 

specific HMS. 

Comment 35: The South Atlantic 

Fishery Management Council (SAFMC) 

and the State of Georgia commented that 

the preferred alternative I11(b) should 

be revised as for state/federal 

regulations does not implement the 

correct intent as: For allowable Atlantic 

billfish (and other HMS that can legally 

be included), if a state has a catch, 

landing, or gear regulation that is more 

restrictive than a catch, landing, or gear 

regulation in the HMS FMP, a person 

landing in such state Atlantic Billfish 

(and other HMS to be included) taken 

from the U.S. EEZ must comply with 

more restrictive state regulation. The 

requirement should be a two-way street 

where more restrictive state regulations 

should apply in adjacent federal waters. 

Response: Individual states establish 

regulations for billfish or other HMS 

caught in state waters, which may 

sometimes be more restrictive than the 

federal regulations. This final action 

would not change state regulations of 

fishing in state waters. Federal 

regulations are established based on 

ICCAT recommendations (e.g., the 

billfish size limits), implemented as 

necessary and appropriate pursuant to 

ATCA and based on the MagnusonStevens Act. Selected alternative I11(b) 

is intended to ensure compliance with 

these laws and Federal regulations by 

federally-permitted vessels. 

Comment 36: HMS needs to check 

with the Regional Fishery Management 

Councils to make sure they are not 

running afoul of one another. The 

preferred alternative I11(b) could create 

more confusion if there is not a 

consistent policy for all Federal fishery 

regulations. 

Response: While NMFS agrees that 

consistent policies across fisheries 

regulations are often appropriate, NMFS 

disagrees that a regulatory requirement 

would cause confusion if it were not 

consistent across the different Regional 

Fishery Management Councils. 

Currently, recreational fishermen 

fishing for HMS are the only Federally 

regulated recreational fishermen that are 

required to obtain a recreational fishing 

permit. Recreational fishermen fishing 

for HMS in Federal waters are already 

familiar with and abide by Federal 

regulations for HMS. Similar to other 

regulations, a permit condition that is 

appropriate for HMS may not be 

appropriate for a species managed by a 

Regional Fishery Management Council. 

A Federal permit condition for those 

HMS fishermen who also fish for HMS 

in state waters should not cause 

confusion with other Federal 

regulations for other species managed 

by Regional Fishery Management 

Councils. Nevertheless, NMFS will 

continue to work with the affected 

Regional Fishery Management Councils 

to ensure consistency, as needed. 

Comment 37: Texas Parks and 

Wildlife opposes the preferred 

alternative I11(b), which would 

establish a permit condition on 

recreational permit holders. The 

alternative would increase confusion 

because it applies only to HMS and not 

to the many other species in state 

waters. Second, Texas regulations 

require that recreational landings in 

Texas meet Texas bag and size limits 

regardless of where the fish was caught 

unless the regulations in the waters 

where they were caught are more 

restrictive. Third, the preferred 

alternative applies only to Federal 

permit holders and would therefore 

create a scenario where different 

regulations apply in the same location. 

Lastly, the alternative does not simplify 

already confusing and complex 

regulations. 

Response: NMFS does not agree that 

a recreational permit condition will 

increase confusion. This regulation will 


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decrease confusion by clarifying that 

fishermen who are permitted to fish for 

HMS in Federal waters must comply 

with Federal regulations regardless of 

where they are fishing, and that if they 

are fishing in state waters they must 

comply with the more restrictive 

regulation. Without this regulation, 

fishermen may need to comply with one 

regulation while fishing in Federal 

waters and another regulation while 

fishing in state waters. The final rule 

clarifies the situation if fishermen are 

fishing in both state and Federal waters 

on the same trip. With regard to the 

second point, the State of Texas has 

implemented a regulation for its waters 

that mirrors the regulation that NMFS is 

selecting. The Federal requirements will 

not change this and may complement 

the regulation by ensuring that federally 

permitted fishermen do not exceed 

either the Federal or Texas bag and size 

limits when fishing in or near Texas 

waters. NMFS agrees that different 

regulations could apply to federally 

permitted fisherman fishing in state 

waters next to a state-only permitted 

fisherman. This should not be an issue 

since the more restrictive regulation 

would apply. It may appear to be unfair 

to the federally permitted fisherman if 

the Federal regulations for that species 

are more restrictive than the state 

regulations for that species. However, 

the federally permitted fisherman also 

has the opportunity to fish for HMS 

outside of state waters. If the federally 

permitted fisherman decides that the 

opportunity is not worth the additional 

restrictions, then that fisherman could 

decide not to obtain the permit. The 

final rule will not change the 

regulations for state-only permitted 

fishermen, who are restricted to fishing 

within state waters and must comply 

with state, not Federal, regulations. 

Comment 38: While the South 

Carolina Department of Natural 

Resources understands the importance 

of consistent protection for HMS in state 

and Federal waters, we do not believe 

it was the intent of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act) to regulate fisheries in state waters 

except under unusual circumstances. 

We request that preferred alternative 

I11(b) be deleted from the plan, and that 

HMS caught within state waters be 

regulated through complementary state 

legislation and regulations, or through 

provisions already existing in the Act 

that address special cases. 

Response: NMFS does not agree that 

the requirement is regulating fisheries in 

state waters. The Magnuson-Stevens Act 

authorizes the Secretary of Commerce to 

manage HMS fisheries to ensure their 

conservation and the achievement of 

optimum yield throughout their range, 

both within and beyond the exclusive 

economic zone (16 U.S.C. 1812). 

Requiring recreational fishermen to 

comply with Federal regulations 

regardless of where they are fishing, 

unless a state has more restrictive 

regulations, allows NMFS to manage 

these fisheries in a more effective 

manner. Additionally, the requirement 

will only apply to those fishermen that 

obtain a Federal permit because they 

fish in Federal waters at some times. 

The requirement will not change state 

regulations. Thus, states can establish 

their own regulations for fishermen who 

fish in state waters and not in Federal 

waters. Fishermen still have a choice 

not to obtain a Federal permit and to 

comply only with state regulations in 

state waters. 

xii. Proposed Regulatory Changes that 

Do Not Need Alternatives 

Comment 39: We support the 

regulatory changes that do not have 

alternatives. 

Response: NMFS appreciates this 

comment. The regulatory changes that 

did not need alternatives included 

corrections, clarifications, minor 

changes in definitions, and 

modifications to remove obsolete crossreferences. It is necessary to make these 

types of regulatory changes as dates 

expire, and as minor issues are brought 

to the Agency’s attention. 

Comment 40: NMFS received a 

comment regarding the changes to 

clarify the definition of ‘‘shark’’ and the 

shark ‘‘management unit’’: I am 

concerned about any item that lessens 

conservation on deepwater sharks; and, 

deepwater sharks should be added to 

the prohibited list rather than removed 

from the management unit. 

Response: The minor changes to the 

shark definition and management unit 

will not diminish the conservation of 

deepwater sharks. Deepwater sharks 

were previously placed in the 

management unit in order to prevent 

finning for these species. No other 

regulations (e.g., permits, quotas, or bag 

limits) were placed on these species. 

With the implementation of the Shark 

Finning Prohibition Act in 2002 

(February 11, 2002, 67 FR 6194), NMFS 

decided the species were fully protected 

against finning through regulations 

outside of the FMP, and thus, removed 

the species from the management unit 

in Amendment 1 to the 1999 Atlantic 

Tunas, Swordfish, and Shark FMP 

(December 24, 2003, 68 FR 74746). The 

referenced changes clarify the existing 

regulations by linking the definition of 

‘‘shark’’ more directly to the definition 

of the shark ‘‘management unit.’’ NMFS 

will continue to collect information on 

deepwater sharks and may add them to 

the management unit or implement 

additional management measures in the 

future, as needed. 

Comment 41: The proposed changes 

to the HMS tournament registration 

process appear to complement proposed 

improvements to HMS tournament 

registration, data collection, and 

enforcement described in Alternative 

E9. Data collection should be mandatory 

for all tournaments, just as it has been 

for all non-tournament landings since 

2003. There must be more accurate 

estimates of billfish mortality. 

Response: These regulatory changes, 

which specify that HMS tournament 

registration is not considered complete 

unless the tournament operator receives 

a confirmation number from the HMS 

Management Division, will serve a very 

similar purpose to the non-preferred 

alternative, which would have 

implemented a mandatory HMS 

tournament permit. HMS tournament 

registration is already mandatory, so the 

issuance of a confirmation number will 

provide verification that the process is 

complete in a much less burdensome 

manner. Currently, NMFS can select all 

registered HMS tournaments for 

mandatory reporting. Data obtained 

from HMS tournament reporting is used 

for a variety of purposes. 

Essential Fish Habitat (EFH) 

Comment 1: NMFS should look at 

recent Sargassum research that suggests 

that Sargassum is essential fish habitat 

for juvenile billfish. The United States 

should pursue all appropriate 

opportunities to ensure that this unique 

EFH is protected in international waters 

from excessive harvest and degradation. 

Response: NMFS is aware of recent 

research regarding the role of Sargassum 

as EFH for certain species, including 

HMS. However, NMFS does not have 

the authority to identify and describe 

EFH in international waters. 

Furthermore, NMFS is not modifying 

the current descriptions or boundaries 

of EFH in the Consolidated HMS FMP. 

Rather, NMFS gathered all new and 

relevant information and presented it in 

the Draft FMP to determine whether 

changes to EFH may be warranted. If 

NMFS determines that EFH for some or 

all HMS needs to be modified, then that 

would be addressed in a subsequent 

rulemaking, at which point Sargassum 

could also be considered as potential 

EFH. With regard to harvest, the final 

South Atlantic Fishery Management 

Council FMP for Pelagic Sargassum 

Habitat in the South Atlantic Region 

was approved in 2003 and implemented 


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strict restrictions on commercial harvest 

of Sargassum. The approved plan 

includes strong limitations on future 

commercial harvest. Restrictions 

include prohibition of harvest south of 

the boundary between North Carolina 

and South Carolina, a total allowable 

catch (TAC) of 5,000 pounds wet weight 

per year, limiting harvest to November 

through June to protect turtles, requiring 

observers onboard any vessel harvesting 

Sargassum, prohibiting harvest within 

100 miles of shore, and gear 

specifications. 

Comment 2: The U.S. proposal at 

ICCAT to identify Sargassum as EFH 

was met with absolute resistance. NMFS 

has to be careful in dealing with this 

subject in an international forum. It can 

undermine what NMFS is trying to do. 

Response: NMFS is aware that there 

are many issues to consider with regard 

to identifying and describing Sargassum 

as EFH for HMS species. In addition, 

there are potential international 

concerns, as expressed at ICCAT, 

regarding Sargassum as sensitive and 

valuable habitat. NMFS will continue to 

examine these issues carefully, and 

work to improve our understanding of 

the role of Sargassum as valuable habitat 

for HMS. 

Comment 3: Does NMFS have data to 

justify not designating the entire 

northern Gulf of Mexico as EFH, where 

the paper in the journal ‘‘Nature’’ shows 

the presence of adult BFT from January 

to June? 

Response: As described in response to 

comment 1, NMFS is not currently 

changing any of the EFH areas identified 

for HMS, including EFH for BFT 

through this FMP. However, large 

portions of the Gulf of Mexico are 

already identified as EFH under the 

original EFH descriptions in the 1999 

FMP for several life stages of BFT, 

including adult and larval BFT. 

Comment 4: The HMS regulations 

should acknowledge and comply with 

Gulf of Mexico EEZ EFH and Habitat 

Areas of Particular Concern (HAPC) 

designation and regulations, including 

any future designations that the Gulf of 

Mexico Fishery Management Council 

may make when conducting the 

subsequent rulemaking mentioned in 

the Draft Consolidated HMS FMP. 

Response: NMFS agrees that any 

future modifications to EFH or new 

HAPC areas in the Gulf of Mexico, or 

any region for that matter, should be 

coordinated with appropriate Regional 

Fishery Management Council 

designations and regulations. The EFH 

guidelines require NMFS to consider 

fishing and non-fishing impacts of other 

fisheries on HMS EFH, as well as the 

impact of HMS fishing activities on EFH 

for other federally managed species. 

Comment 5: What process did NMFS 

use to identify shark EFH areas north of 

Cape Hatteras? EFH boundaries appear 

to follow bathymetric contour intervals. 

Is this deliberate or just a coincidence? 

Response: EFH areas north of Cape 

Hatteras were identified and described 

in the 1999 FMP through a combination 

of fishery dependent and independent 

surveys and data collection, research, 

and the input of fishery managers and 

scientists. References to peer-reviewed 

scientific publications that were used to 

help identify important spawning and 

nursery habitat for sandbar and dusky 

shark are included in the 1999 FMP as 

well as the Consolidated HMS FMP. As 

described in the 1999 FMP, in some 

cases bathymetric contours were used to 

help delineate EFH boundaries because 

they can mirror the observed 

distributions of HMS and important 

areas for spawning, feeding, and growth 

to maturity. 

Comment 6: NMFS should not use the 

same process the Gulf of Mexico Fishery 

Management Council did in identifying 

EFH and impacts to EFH. The Gulf of 

Mexico Fishery Management Council 

managed areas are completely different, 

and people fish differently here (in the 

Atlantic) than in the Gulf of Mexico. 

Response: The species managed by 

each of the Regional Fishery 

Management Councils are unique, with 

characteristics that require different 

approaches and methodologies for 

identification and description of EFH, 

including addressing both fishing and 

non-fishing impacts. Similarly, HMS 

have unique habitat requirements that 

require a unique approach to 

identification of EFH. However, EFH 

guidelines require NMFS to consider 

fishing and non-fishing impacts of other 

fisheries on HMS EFH, as well as the 

impact of HMS fishing activities on EFH 

for other federally managed species. 

Therefore, NMFS must coordinate with 

the relevant regional fishery 

management councils as part of the 

process of modifying EFH. 

Comment 7: Does HMS EFH include 

liquefied natural gas (LNG) facilities? 

Response: NMFS has not specifically 

identified the structures associated with 

LNG facilities as EFH, however, these 

structures may be located within waters 

that have been identified as HMS EFH. 

For example, there are energy 

production facilities off the coast of 

Louisiana and Texas that may fall 

within EFH identified and described for 

BFT, yellowfin tuna, swordfish, and 

other HMS species. 

Comment 8: NMFS received several 

comments regarding BFT EFH in the 

Gulf of Mexico including, NMFS must 

identify the Gulf of Mexico spawning 

area as EFH for BFT and consider 

appropriate measures to minimize the 

impact of fishing on this EFH, and if 

NMFS identifies the Gulf of Mexico BFT 

EFH, then NMFS should include the 

rest of the Atlantic and the 

Mediterranean also. 

Response: Portions of the Gulf of 

Mexico, Florida east coast, and the 

Atlantic were identified and described 

as adult and larval BFT EFH in the 1999 

FMP for Atlantic Tunas, Swordfish, and 

Sharks, and the areas remain in effect to 

this day. NMFS is reviewing new and 

existing information, including data on 

potential BFT spawning areas, and will 

take that information into account if any 

modifications to EFH areas are proposed 

in a future rulemaking. NMFS does not 

have the authority to identify and 

describe EFH outside of the U.S. EEZ. 

Comment 9: NMFS is to be 

commended for substantial progress in 

development of the HMS EFH Plan. 

NMFS has come a long way in 

identifying EFH and should be 

congratulated on the work completed in 

the EFH review and the review of 

fishing impacts. However, there is still 

a disconnect between the available data, 

especially with sharks, and what is in 

the Draft Consolidated HMS FMP. 

NMFS should do a better job of 

including data from research 

institutions and grants. NMFS should 

include individual researcher’s names 

that have contributed toward identifying 

EFH. 

Response: NMFS appreciates the 

favorable comment, while 

acknowledging that there is 

considerable work left to do to 

accurately identify and describe EFH for 

HMS. As described in the Final 

Consolidated FMP, significant hurdles 

must be overcome and NMFS is 

attempting to address these. For 

example, NMFS is continually working 

with NMFS scientists and other experts 

to update relevant data regarding HMS 

EFH as it becomes available. NMFS will 

also include the names of researchers 

responsible for collecting the data. 

Where possible and appropriate, NMFS 

has already included the names of 

individual researchers in the text, maps, 

and tables. 

Comment 10: NMFS needs to update 

EFH for sandbar sharks, all age groups, 

by including a nursery area in the 

western Gulf of Mexico off the Texas 

coast, which is a straddling stock with 

Mexico. It gets into the straddling stock 

issue instead of the closed stock 

scenario. NMFS needs to recognize the 

reality of the straddling stock. This area 


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is referred to in Stewart Springer’s ‘‘The 

Natural History of the Sandbar Shark.’’

Response: NMFS is aware of research 

done by Springer (1960) who proposed 

the existence of two breeding 

populations of sandbar sharks, one off 

the mid-Atlantic coast, and one in the 

Gulf of Mexico. One of the research 

recommendations of the 2005 LCS Stock 

Assessment was to identify nursery 

areas of sandbar sharks in the northern 

Gulf of Mexico, and NMFS will consider 

this information in any subsequent 

updates or modifications to sandbar 

shark EFH. Although the Springer 

research showed a few neonates 

(newborns) in the Gulf of Mexico, there 

may not have been enough to consider 

this area a primary nursery habitat like 

the mid-Atlantic. 

Comment 11: NMFS has identified 

HAPCs off of North Carolina and other 

areas further north. Since NMFS has 

implemented a closure off North 

Carolina, NMFS should also bring 

Virginia into compliance to discourage 

shark fishing during pupping periods. 

Response: NMFS agrees, and has 

asked Virginia to implement state 

regulations that complement the Federal 

regulations. Recently Virginia 

implemented a 4,000 lb trip limit 

consistent with the Federal regulations. 

NMFS is continuing to work, through 

ASMFC and the development of a 

coastwide state fishery management 

plan, with Virginia and other states to 

implement similar regulations as the 

Federal fishery. 

Comment 12: NMFS should consider 

differences between monofilament and 

cable bottom longline when it comes to 

gear and impacts to coral reefs and 

sponges. Bottom longline gear would 

not damage mud bottoms. 

Response: NMFS agrees that the type 

of gear used to fish in sensitive habitat 

areas may affect the overall impacts. 

NMFS will also be looking at overall 

fishing effort in sensitive coral reef areas 

to determine whether fishing impacts 

are more than minimal and not 

temporary. If NMFS finds that the 

adverse fishing effects on EFH are more 

than minimal and not temporary in 

nature, then NMFS will have to 

consider alternatives to reduce fishing 

impacts. 

Comment 13: Most HMS gears such as 

pelagic longline would not affect HMS 

EFH. 

Response: NMFS agrees that gears 

used to fish for HMS, with the possible 

exception of bottom longline gear, 

would have little or no impact on HMS 

EFH. 

Comment 14: NMFS should look at 

sink gillnets and possible impacts on 

EFH. Fishermen may not want to fish on 

live bottom and reefs, but they do hit 

them as evidenced by the catch, which 

includes various reef species that they 

catch incidentally. These may include 

HMS forage species as well. NFMS 

should investigate the possible impacts 

of sink gillnet gear on offshore hard 

bottoms and reefs. This gear is being 

deployed on sensitive sponge-coral 

areas. 

Response: The full extent of sink 

gillnet impacts on benthic habitat is not 

known at this time. NMFS agrees that 

the primary adverse impact of sink 

gillnets to sensitive habitat would be to 

areas containing coral reefs or soft 

sponges. Sink gillnets set on sandy or 

mud bottom would be less likely to have 

an adverse effect, as there would be 

little vertical structure that could be 

damaged. NMFS will continue to gather 

information to assess whether sink 

gillnets are having adverse effects on 

EFH and whether actions to minimize 

adverse impacts should be taken in a 

future rulemaking. 

Comment 15: Will NMFS be 

documenting where the prey species are 

found? 

Response: Similar to what was done 

in the 1999 FMP for Atlantic Tunas, 

Swordfish, and Sharks, NMFS will 

document areas that are important to 

HMS for spawning, feeding, breeding, 

and growth to maturity. This will 

require identification of prey species 

and the degree to which they overlap 

both temporally and spatially with HMS 

in a given area. 

Comment 16: NMFS should consider 

EFH designation for forage species for 

BFT in the Gulf of Maine. By removing 

prey species such as herring, mid water 

trawling has been destroying BFT in the 

Northeast. Fish are moving to Canada, 

and Canada would be happy to take our 

fish. Mid-water trawling is banned in 

Canadian waters, and they have a 

booming BFT fishery right now. We 

have seen in the past that the BFT will 

modify their migrations, and we would 

not want to see that happen now. We 

are disappointed to see that this has not 

been addressed at all in the FMP. The 

New England Fishery Management 

Council is taking Amendment 7 under 

consideration, and we would like to see 

an emergency rule take place to ban 

mid-water trawling gear. 

Response: In the 1999 FMP for 

Atlantic Tunas, Swordfish, and Sharks, 

NMFS identified and described large 

portions of the Gulf of Maine as EFH for 

adult BFT, and smaller portions of the 

Gulf as EFH for juvenile BFT. As set 

forth in the EFH guidelines, loss of prey 

species may be an adverse effect on EFH 

and managed species because the 

presence of prey makes waters and 

substrate function as feeding habitat. 

Therefore, actions that reduce the 

availability of a major prey species, 

either through direct harm or capture, or 

through adverse impacts to the prey 

species’ habitat that are known to 

reduce the population of the prey 

species, may be considered adverse 

effects on EFH if such actions reduce 

the quality of EFH. However, as 

described in the FMP, BFT are 

opportunistic feeders that prey on a 

variety of schooling fish, cephalopods, 

benthic invertebrates, including silver 

hake, Atlantic mackerel, Atlantic 

herring, krill, sandlance, and squid. 

Thus, NMFS needs to determine the 

extent to which herring or other prey 

species contribute to BFT EFH, and 

whether the removal of a portion of 

herring in the Gulf of Maine constitutes 

a negative effect on BFT EFH prior to 

taking any action. The EFH areas 

identified and described as EFH for 

adult BFT in the Gulf of Maine may 

overlap with a number of different prey 

species in the area in addition to 

Atlantic herring. These types of analyses 

would be part of a follow up rulemaking 

in which any changes to EFH 

boundaries, as well as any measures to 

minimize adverse effects, would be 

proposed. NMFS will continue to 

examine the importance of forage 

species on BFT and other HMS EFH. 

Comment 17: NMFS should 

implement similar measures for herring 

as those taken by the New England 

Fishery Management Council. Even 

though herring are not a HMS species, 

HMS are part of sustainable fisheries, 

and NMFS has an interest at stake. HMS 

should speak up when NMFS is 

considering what to do with the herring 

plan. 

Response: The New England Fishery 

Management Council has proposed 

several measures for the Atlantic herring 

fishery in the Gulf of Maine, including 

limited access permits, a mid-water 

trawl restricted area, area specific total 

allowable catches, and vessel 

monitoring systems, among others. 

NMFS is following the development of 

the FMP and will provide comments on 

the plan as appropriate. 

Comment 18: EFH designations are 

intended to address the physical habitat 

and not forage species. EFH is not an 

appropriate forum to address forage 

issues. For example, herring fishermen 

could say that they cannot catch herring 

because the BFT are eating them all. The 

timing and location of harvest is a 

management issue, not a habitat issue. 

This is a question about access. 

Response: The EFH guidelines state 

that FMPs should list the major prey 

species for the species in the fishery 


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management unit and discuss the 

location of prey species habitat, and that 

loss of prey may be considered an 

adverse effect on EFH. Thus, NMFS 

considers it appropriate to examine the 

presence of Atlantic herring and their 

role as a forage species for BFT. 

Comment 19: NMFS should not draw 

too many conclusions on less than 

complete data. HMS species are oceanwide. NMFS needs to get the 

international forum involved. They have 

used very progressive research 

techniques. Predator-prey relationships 

are important to every species. 

Response: NMFS has been cautious in 

the interpretation of data based largely 

on presence or absence (level 1). While 

there is a great deal of ongoing research 

to identify and describe EFH, in many 

instances the research is localized or 

regional in nature, whereas HMS exhibit 

trans-regional movement and 

migrations. This makes identifying and 

describing EFH for HMS particularly 

challenging. For example, even though 

researchers may identify an area in the 

Gulf of Mexico as EFH for a particular 

species, those habitat characteristics 

may not necessarily constitute EFH for 

the same species in other regions. 

Furthermore, NMFS can only identify 

and describe EFH within the U.S. EEZ, 

pursuant to the Magnuson-Stevens Act. 

Comment 20: The definition of EFH 

for Atlantic HMS should be modified to 

include the geographic range of the 

species and to add the availability of 

forage for HMS in critical areas, in time 

and space. 

Response: The EFH guidelines require 

EFH to be distinguished from the 

geographic range of the species. The 

principle of the EFH provisions in the 

Magnuson-Stevens Act was to identify 

only those areas that are essential for 

feeding, breeding, or growth to maturity, 

and not all areas where a particular 

species is present. For example, if only 

level 1 information is available, 

distribution data should be evaluated to 

identify EFH as those habitat areas most 

commonly used by the species. Level 2 

through 4 information, if available, 

should be used to identify EFH as the 

habitats supporting the highest relative 

abundance, growth, reproduction, or 

survival rates within the geographic 

range of a species. The geographic range 

for HMS is extremely large and would 

likely result in identifying all areas in 

the EEZ as EFH. Due to the vastness of 

such an area, it would be difficult to 

propose effective conservation 

measures. Narrowing or refining the 

extent of EFH can improve NMFS’s 

ability to focus its conservation and 

management efforts on those habitats 

most important to the health of the 

managed species. NMFS agrees that 

forage species may be an important 

component of HMS EFH and has taken 

steps to identify those areas. 

Comment 21: Shark pupping and 

nursery areas remain unprotected. 

Conserving shark habitat is closely 

linked with state cooperation. NMFS 

should continue to fund and encourage 

research into shark EFH and to publish 

and distribute the results of such 

studies. 

Response: NMFS disagrees that shark 

pupping and nursery areas remain 

unprotected. In 2005, NMFS 

implemented a time/area closure off 

North Carolina in shark pupping and 

nursery areas to reduce the bycatch and 

mortality of neonate (newborns) and 

juvenile sandbar sharks as well as all 

life stages of prohibited dusky sharks. 

While there are many other areas that 

may not have the same level of 

protection, NMFS currently closes the 

large coastal shark (LCS) fishing season 

from April through June to reduce 

impacts on pregnant females who may 

be moving into coastal areas for 

pupping. Many states have 

implemented a similar closure of state 

waters for LCS shark fishing during 

these months consistent with the 

Federal regulations. Finally, most HMS 

gears have little or no impact on HMS 

EFH. Bottom longline gear is the only 

HMS gear that may affect hard bottom 

habitat such as corals and sponges, but 

many shark pupping and nursery areas 

are located outside of these habitat 

types. NMFS continues to fund shark 

research, such as surveys conducted 

through the Cooperative Atlantic States 

Shark Pupping and Nursery Areas 

(COASTSPAN) and a similar survey in 

the Gulf of Mexico (GULFSPAN), and 

will continue to distribute the results of 

such studies. 

Comment 22: NMFS must continue to 

recognize that these HMS must be 

conserved through out their range 

internationally. Assumptions made on 

partial information may not necessarily 

be valid Atlantic-wide. 

Response: NMFS agrees that it is 

important to consider habitat 

conservation measures throughout the 

range of HMS which may include 

international waters, particularly for 

tunas, swordfish, billfish, and pelagic 

sharks. NMFS has taken steps in the 

past to raise the level of awareness of 

the importance of certain habitats such 

as Sargassum at ICCAT, and will 

continue to try to lead the effort in 

promoting conservation of HMS EFH. 

However, as discussed in an earlier 

response, NMFS is only authorized to 

identify and describe EFH within the 

U.S. EEZ pursuant to the MagnusonStevens Act. 

Economic and Social Impacts 

Comment 1: The high fuel costs are 

having a tremendous negative economic 

impact on all U.S. commercial fisheries. 

While prices for fuel and fuel products 

have dramatically risen, the price of fish 

has nearly collapsed our markets far 

below the levels necessary for profitable 

operations, due in part to a flow of 

imports from largely unregulated 

sources. 

Response: NMFS recognizes that fuel 

prices have recently risen to above 

average levels and continue to fluctuate. 

The Agency is monitoring the impacts 

of high fuel costs and other expenses as 

part of ongoing cost and earnings data 

collection efforts in the HMS fisheries. 

The Agency encourages fishermen to 

participate in this data collection effort 

on a voluntary basis in order to improve 

the quality of information available on 

HMS commercial fisheries. The trend in 

ex-vessel prices for HMS fish has varied 

by species and is detailed in Chapter 3 

of the Final Consolidated HMS FMP. 

The flow of imports of many HMS 

products are managed by international 

agreements, include ICCAT and the 

supply of imports will vary based on 

market forces. Details regarding 

information concerning imports are also 

detailed in Chapter 3 of the Final 

Consolidated HMS FMP. 

Comment 2: Holding workshops for 

just owners and captains could have an 

impact on the market. A number of 

captains coming in at the same time to 

the workshop means they will end up 

fishing at the same time and bringing 

fish to the market at the same time. 

Response: NMFS acknowledges that 

holding workshops that bring together 

owners and captains at the same time 

could have an impact on local markets. 

As discussed in Chapter 4 of the Final 

Consolidated HMS FMP regarding 

workshops, the Agency plans to 

minimize these impacts by timing 

workshops to coincide with closed 

seasons, moon phases, and other events 

that normally are down times for local 

HMS fishing operations where 

workshops will be held. Fishermen will 

also have the option of attending 

workshops in other neighboring regions 

on different dates. 

Comment 3: NMFS received 

comments emphasizing the economic 

importance of recreational fishing for 

HMS and concern regarding the 

economic impacts additional 

regulations could have on the 

recreational sector of local economies. 

Comments include: fishing is a key part 

of the whole coastal economy and 


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NMFS should take care not to overregulate; tourists have many options, 

and may choose not to fish if the 

regulations are too burdensome and 

decrease enjoyment; the Mid-Atlantic 

$500,000 tournament brings over 2,000 

people to Cape May County who will 

eat, sleep, and shop in this tourism 

dependent area for the length of the 

tournament spending an estimated 

$450,000 in lodging alone and this event 

is very important to this tourism driven 

economy, providing jobs for year-round 

residents and students who earn college 

money during the summer months; and 

the economic value of recreational 

fishing is much greater than that of 

commercial fishing, and according to a 

2001 United States FWS report, the 

value of the recreational fishery is $116 

billion. 

Response: NMFS recognizes the 

economic importance of recreational 

fishing for HMS, including its impact on 

tourism, lodging, and local employment. 

Chapters 3 and 4 of the Final 

Consolidated HMS FMP have sections 

regarding billfish that provide extensive 

information regarding the economic 

importance of recreational anglers and 

tournaments. 

Comment 4: We are disturbed by the 

lack of any economic data or references 

for the recreational sector. This 

indicates a lack of concern for the 

recreational sector and ignores the 

enormous economic impact of this 

sector. 

Response: NMFS has taken measures 

to improve the amount of economic data 

and references regarding the 

recreational sector of the HMS fishery. 

This information is detailed in Chapters 

3 and 4 regarding billfish, and Chapter 

4 regarding authorized gear. Direct 

measures in this HMS FMP regarding 

the recreational sector include, but are 

not limited to, the authorization of 

speargun fishing for Atlantic BAYS 

tunas, improving BFT quota 

management, and improving 

information gathering by requiring 

vessel owners to report non-tournament 

recreational landing of swordfish and 

billfish. The speargun authorization was 

designed specifically to enhance 

economic opportunities associated with 

HMS recreational fishing sector. 

Comment 5: The Draft Consolidated 

HMS FMP does not discuss the 

socioeconomic impact to the 

recreational fishing sector. The fishing 

and boating industry is essential. 

Nationally, it generates $34 billion 

annually, which is more than the 

longliners. The Destin Charterboat fleet 

has a study that it generates $134 

million annually to the local economy. 

A 2003 article in the Destin Log quotes 

a Haas Center for Business Research and 

Economic Development at the 

University of West Florida study, which 

says that the Charterboat fleet alone has 

a $349 million economic impact on 

Okaloosa and Walton counties. 

Response: The HMS FMP assesses the 

impacts of regulatory alternatives on the 

HMS recreational fishery. Chapter 3 

provides a detailed discussion of the 

socioeconomic impacts of the 

recreational HMS fleet. A full 

assessment of the total economic 

impacts of all recreational fishing is 

beyond the scope of this FMP. 

The Agency notes the Destin 

Charterboat fleet study on the impacts of 

that fleet on the local economy. 

However, the impact of the HMS 

portion of the Destin Charterboat fleet is 

not discernable from that study and thus 

only represents a portion of the $134 

million total annual impact of 

recreational fishing on the local 

economy. 

Comment 6: In 1989, the SAFMC 

documented the HMS commercial 

fisheries above the $100 million 

threshold. NMFS has a range of values 

in various documents but certainly 

below $40–45 million ex-vessel value. 

Who is responsible for the economic 

losses over $100 million from 

unnecessary and cumulative regulatory 

discard policies? 

Response: A combination of long-term 

market forces, biological changes to 

species populations and necessary 

regulatory activities have had an impact 

on the ex-vessel value of the HMS 

fisheries. In Chapter 3 of the Final 

Consolidated HMS FMP, the Agency 

notes that the ex-vessel value of the 

HMS fisheries has been estimated to be 

between $44 and $92 million over the 

past six years. 

Comment 7: The information in the 

community profiles is so dated that they 

do not present an accurate current 

portrayal, at least concerning the HMS 

fisheries, which has very rapidly 

declined since the implementation of 

the 1999 HMS FMP measures, 

especially the time/area closures 

implemented in 2000. 

Response: While information in 

community profiles included in this 

document are now several years old, it 

represents the best available information 

and includes the latest U.S. Census data 

from 2000. However, NMFS intends to 

update the community profiles. Chapter 

9 documents a list of communities that 

need to be further examined. The 

Agency recently published a solicitation 

to update these profiles. 

Comment 8: In terms of social and 

economic issues, the data need to be 

standardized to recent dollars. I am 

troubled by NMFS staying with limited 

knowledge. There is additional work 

that can be done to understand social 

and economic changes. There are lots of 

other things that can be done to 

understand how people are impacted. 

Recreational data is a whole area lacking 

data. The cumulative impacts section is 

the soft underbelly of this plan. You 

need to work on this section. It 

characterizes the impacts without 

providing much evidence of assessment. 

NMFS uses soft language. NMFS does 

not know much about the people that 

are being regulated, and that is a 

problem. 

Response: Economic data was 

standardized to 2003 dollars in the Draft 

Consolidated HMS FMP and to 2004 

dollars in the Final Consolidated HMS 

FMP using the Consumer Price Index 

(CPI-U). NMFS has taken measures to 

enhance the information available 

regarding social and economic changes. 

The Agency has added information 

regarding charter boat rates for HMS 

trips and angler expenditure data. Other 

research projects throughout the Agency 

regarding the impacts of the 2005 

hurricanes and a recreational fishing 

survey currently being conducted will 

further enhance the Agency’s 

knowledge of the characteristics of the 

regulated community. 

Consolidation of the FMPs 

Comment 1: NMFS received 

comments in support and in opposition 

to the consolidation of the FMPs. Those 

in support included: we support 

consolidation of the FMPs contingent on 

preserving the objectives of the Atlantic 

billfish plan and the original objectives 

pertaining to swordfish and traditional 

swordfish handgear (harpoon and rodand-reel) fisheries; and we had concerns 

that several of the most important 

objectives from the billfish FMP had 

been left out, but we are pleased that 

NMFS has addressed those concerns by 

including them in this draft. As a result, 

we now support the consolidation. 

Those comments opposed to the 

consolidation include: The GMFMC and 

others recommend that the HMS and 

Billfish FMPs and APs be kept separate; 

the GMFMC and others noted that the 

Billfish FMP is primarily a recreational 

FMP whereas the Atlantic Tunas, 

Swordfish and Sharks FMP is both 

recreational and commercial; the U.S. 

billfish fisheries are unique and 

recreational only while swordfish, 

tunas, and sharks are managed to utilize 

country-specific quotas; the billfish 

fishery is the only HMS fishery to 

practice catch-and-release; those whose 

efforts have saved and conserved these 

species should govern it; Atlantic 


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billfish fishery is the most valuable 

fishery in the country and ought to 

retain its distinct and separate status; I 

have some concerns regarding the 

consolidation of FMPs and managing 

billfish for maximum sustainable yield, 

when it is primarily a catch-and-release 

fishery, as no social or economic 

impacts are assessed; Puerto Rico Game 

Fish Association opposes the 

consolidation due to the recreational 

nature of the billfish fishery and 

because they do not fish for shark or 

tunas in tournaments. They are 

concerned that by combining plans, 

billfish will be viewed as a bycatch 

species; tuna and other offshore ‘‘meat 

fish’’ species should not be 

‘‘consolidated’’ with billfish in 

regulatory legislation; tunas have been 

traditionally treated as fish to be 

harvested, not as a ‘‘catch-and-release’’

species, and they should have the issues 

that concern them addressed separately 

from the unique circumstances 

concerning marlin and sailfish; 

economic expenditures involved in the 

bluefin tuna fishery are just as 

important as that in the marlin fishery; 

I favor more micro-management rather 

than one FMP because it takes so long 

for changes to occur if everything is 

consolidated. This way, any particular 

species will need an entire FMP to take 

regulatory action; combining fishery 

management plans is an example of how 

you prejudice your research and 

analyses. The longline fishermen come 

in and take the bait that the billfish seek 

reducing the number of billfish coming 

in to areas that were once critical to 

their life history. A billfish FMP 

approach would have been to look at 

bait removal or spawning and nursery 

areas. 

Response: NMFS agrees that 

commercial fisheries aim to fully utilize 

a quota, and that many recreational 

fisheries practice catch-and-release 

fishing. NMFS also agrees that the 

billfish fishery is unique in many 

aspects, and notes that the individual 

tunas, swordfish, and shark fisheries 

also have many unique aspects. NMFS 

believes that these differences between 

the commercial and recreational 

fisheries, and the different aspects of the 

individual recreational fisheries, can be 

accommodated in a consolidated FMP 

just as those differences are already 

accommodated in the existing Atlantic 

Tunas, Swordfish, and Shark FMP. 

Given the interconnected nature of 

the billfish fishery with other HMS 

fisheries, both on the water and in the 

regulatory and policy arenas, as well as 

the current permitting structure, 

changes in any of the non-billfish 

fisheries are likely to have impacts on 

the billfish fishery. Combining the FMPs 

should allow those changes to be 

analyzed more holistically with clear 

links among the impacts and issues 

between fisheries. For example, the 

Billfish FMP has only directed billfish 

measures while the FMP for Atlantic 

Tunas, Swordfish, and Sharks has 

bycatch reduction measures for billfish 

caught in the swordfish and tuna 

fisheries. Combining the FMPs will 

present the whole suite of billfish 

management measures in one 

document. 

NMFS believes that the decision in 

1999 to combine the FMPs for tunas, 

swordfish, and sharks and to 

consolidate the actual regulations for all 

HMS, while a challenge at first, has led 

to a more holistic view of the fishery. 

This view has allowed the impacts of 

management measures on all sectors of 

tunas, swordfish, and shark fisheries to 

be fully analyzed whereas before, the 

links between these fisheries may not 

have been seen or analyzed so readily. 

By combining both FMPs now, NMFS 

is moving toward an ecosystem-based 

approach to the management of HMS. 

Such an approach could ultimately 

benefit the resource and the people 

involved. As an example of potential 

links, at public hearings and in written 

comments, recreational billfish 

fishermen have noted that using circle 

hooks while trolling for blue marlin is 

impracticable. Similarly, at public 

hearings and in written comments, 

recreational tuna fishermen have asked 

for the use of circle hooks on rod and 

reel. In many cases, these fishermen fish 

for tunas and billfish, sometimes on the 

same trip. While NMFS could 

implement different regulations for 

recreational tuna trips and recreational 

billfish trips, management can be more 

effective and appropriate by considering 

the implications on all recreational 

HMS trips. 

Combining the FMPs will not change 

the composition of the APs in terms of 

representation by states and sectors 

(commercial, recreational, academic, or 

conservation). Also, combining the 

FMPs will not change the priorities of 

managing HMS, which are dictated by 

the Magnuson-Stevens Act and other 

domestic law. Combining the 

regulations should not affect the length 

of time it takes to amend or change the 

regulations. NMFS has not experienced 

any delays in changing the regulations 

for a specific species or gear since 

combining the tunas, swordfish, and 

shark FMPs. To the extent that 

combining the FMPs will allow NMFS 

and the public to see links between the 

fisheries easier, combining the FMPs 

should allow for more efficient and 

effective regulations. 

Comment 2: NMFS received a number 

of questions regarding the consolidation 

including: How will the consolidation 

change HMS management? How is this 

FMP easier to comprehend? I 

understand NMFS needs to consolidate, 

but how does this improve 

management? 

Response: Consolidating the FMPs 

will not change the existing regulations 

since they are already consolidated. 

Rather, consolidating the FMPs should 

change how HMS fisheries are viewed 

and the ecological and economic 

impacts analyzed. Having two separate 

FMPs can give the impression that the 

billfish fishery does not affect the tunas, 

swordfish, and shark fisheries and vice 

versa. This impression is incorrect. The 

same fishermen fish for and/or catch all 

HMS, often on the same trip. Thus, 

changes in the regulations need to be 

analyzed and considered across all HMS 

fisheries. For example, regulations that 

limit the recreational catch of one 

species or the gear that can be used 

could result in changes in recreational 

effort on other species or on social and 

economic impacts on the entire 

recreational community. As described 

in the response to Comment 1 above, 

consolidating the FMPs should allow 

NMFS to take a more holistic view of 

HMS fisheries and analyze these links. 

Those analyses should also be more 

apparent to the affected and other 

interested parties. Together the analyses 

and the public comment on the analyses 

of the impacts and the potential 

alternatives to a regulation should lead 

to more efficient and effective 

management. 

Comment 3: NMFS received 

comments regarding the combination of 

the APs. These comments included: the 

number of people on the Billfish AP 

should not decline; we support 

combining the APs; it is redundant, 

confusing and inefficient to have 

separate APs; the customary joint 

meetings of the HMS and Billfish APs 

over the past six years ensured an 

imbalance of representation by the 

recreational fishing sector and the result 

has been lopsided and ineffective 

advice; and the combined AP should be 

fair in representing the various user 

groups. 

Response: NMFS is not expecting to 

change the composition of the APs as a 

result of consolidating the FMPs. Once 

this final rule is published, NMFS 

intends to combine the APs in their 

entirety. Over time, NMFS will adjust 

the number of people on the AP and/or 

representing each group as needed to 


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ensure a balanced representation of all 

interested sectors and regions. 

Objectives of the FMP 

Comment 1: The proposed objectives 

of the Consolidated HMS FMP are 

acceptable, including all suggested 

deletions and revisions, but it is not 

possible to continuously reduce bycatch 

and mortality. Logically, as the status of 

stocks improve, these numbers will 

likely increase. At some point, NMFS 

must recognize that incidental catches 

and mortality will occur and set 

practical and reasonable levels of 

allowable incidental catch. 

Response: Consistent with National 

Standard 9, NMFS aims to minimize 

bycatch to the extent practicable, and to 

the extent that bycatch cannot be 

avoided, minimize the mortality of such 

bycatch. As described in the time/area 

section above, NMFS continues to 

examine the impact of closures and 

other bycatch reduction measures to 

ensure the goals are met. Consistent 

with protected species incidental take 

statements, the results of the stock 

assessments, and the impact of circle 

hooks on bycatch rates, NMFS may 

consider modifying the existing time/ 

area closures or changing existing trip 

limits of the incidental limited access 

permits. 

Comment 2: Regarding Objective 2, 

‘‘Atlantic-wide’’ is a more appropriate 

term than using ‘‘management unit’’

because even a total prohibition on any 

domestic fishing effort would not 

recover the fish stock for most ICCAT 

species. 

Response: NMFS agrees with the 

comment and made the appropriate 

change to Objective 2. 

Comment 3: We are concerned about 

Objective 3, to reduce landings of 

Atlantic billfish in directed and nondirected fisheries. It is unnecessary to 

reduce directed landings that only come 

from the recreational sector. 

Response: Objective 3 does not 

address landings of Atlantic billfish. 

Rather, Objective 3 addresses bycatch in 

all HMS fisheries and post-release 

mortality of billfish in the directed 

billfish fishery. 

Comment 4: Objective 4, establish a 

foundation for international negotiation 

of conservation and management 

measure, sounds as though the intent 

would be to propose the creation of 

additional international management 

entities, other than ICCAT, creating a 

tremendous amount of unnecessary 

bureaucracy that ultimately weakens the 

efficient management of these important 

species. This objective needs to be 

clarified before final approval. 

Response: Objective 4 states that 

NMFS will establish foundations to 

work with other international 

organizations to manage Atlantic HMS. 

NMFS already works with, and intends 

to continue working with, several 

international organizations regarding 

Atlantic HMS including ICCAT, NAFO, 

FAO, and CITES. 

Comment 5: Regarding Objective 4, 

the old practice of ‘‘the U.S. goes 

farthest first’’ simply does not work, and 

often results in the U.S. being 

diminished in its capabilities and 

influence within ICCAT. 

Response: Objective 4 does not state 

that the U.S. should work unilaterally to 

rebuild or maintain Atlantic HMS 

stocks. Rather, Objective 4 builds in the 

concept that NMFS will work with 

international bodies, such as ICCAT, to 

rebuild or maintain sustainable 

fisheries. 

Comment 6: Objective 7 calls for the 

management of Atlantic HMS to achieve 

optimum yield and to provide the 

greatest benefit to the Nation, including 

food production. Atlantic billfish 

should not be managed with the intent 

to increase food supply and the 250 

marlin landing limit is not managing in 

terms of optimum yield. This landing 

limit is not based on maximum 

sustainable yield, nor does it take into 

account relevant social, economic, or 

ecological factors. This objective should 

be reworded to say that Atlantic billfish 

will be managed to provide the greatest 

benefit to the nation with respect to 

recreational opportunities, preserving 

traditional fisheries to the extent 

practicable, and taking into account 

protection of marine ecosystems. 

Response: NMFS agrees that Atlantic 

billfish should not be managed with the 

intent to increase food supply. NMFS 

has reworded Objective 7 to clarify its 

intent. 

Comment 7: Objective 12 calls for the 

promotion of live release and tagging of 

Atlantic HMS. We do not believe it is 

in the Nation’s best interest to promote 

live release for all HMS of legal size and 

those caught within a legal season 

because any HMS poundage under the 

quota resulting from live release stands 

the likely fate of being transferred to a 

country that will harvest the difference, 

ultimately reducing the U.S. ICCAT 

quota. This objective should be 

reworded to state that NMFS would 

promote live release and tagging of 

Atlantic billfish and sub-legal HMS. 

Response: NMFS acknowledges that 

this was not the intent and has 

reworded the objective to address this 

issue. 

Comment 8: Regarding Objective 12, 

all hook and line fishing post-release 

mortality should be addressed. 

Response: NMFS believes that this 

concern is already addressed in 

Objective 12. 

Comment 9: NMFS should make the 

proposed deletions to Objectives 13 and 

14; however, if NMFS does not make 

these deletions, it must reevaluate its 

proposed revisions to Objectives 2, 4, 5, 

and 7. 

Response: While NMFS did suggest 

removing these objectives at the Predraft 

stage, NMFS did not propose removing 

them in the Draft Consolidated HMS 

FMP due to the concern expressed by 

the recreational billfish community 

regarding deleting two of the original 

objectives from the 1988 Billfish FMP. 

NMFS does not believe that these 

objectives conflict with objectives 2, 4, 

5, and 7. Therefore, no changes to those 

objectives are needed. 

Comment 10: Please eliminate the 

word ‘‘almost’’ from Objective 14: 

‘‘Optimize the social and economic 

benefits to the nation by reserving the 

billfish resource for its traditional use, 

which in the continental United States 

is almost entirely a recreational 

fishery.’’

Response: The word ‘‘almost’’ was an 

error and has been removed. The 

objective was been clarified to refer only 

to Atlantic billfish. 

Comment 11: Objective 16 needs to be 

rewritten or eliminated because there is 

no method for measuring over 

capitalization in the recreational fleet. 

Recreational fisheries should not be 

managed by fleet capacity and over 

capitalization. 

Response: NMFS has decided to 

delete Objective 16 for the reason stated 

by the commenter and other reasons, as 

explained in response to comment 12 

below. 

Comment 12: Objective 16, the 

consideration of fishing effort, should 

not be explicit to commercial fisheries. 

Latent effort is only a problem in 

overcapitalized fisheries and the U.S. 

pelagic longline fishery is 

undercapitalized. NMFS needs to 

encourage latent pelagic longline effort 

to become active or reopen the 

‘‘directed’’ swordfish permit category in 

a measured, incremental manner to 

allow new entrants. 

Response: NMFS has deleted 

Objective 16. While Objective 16 was an 

important part of the limited access 

program established in the 1999 FMP, it 

does not apply to all HMS commercial 

fisheries. Instead, NMFS has reworded 

Objective 17 to create a management 

system to make fleet capacity 

commensurate with resource status. 


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Comment 13: Regarding Objective 18, 

NMFS should not condone a 

reallocation that is contrary to the intent 

of the Magnuson-Stevens Act. 

Response: Objective 18 was combined 

with Objective 17 and addresses fleet 

capacity and resource status. This 

objective does not address reallocation 

contrary to the Magnuson-Stevens Act. 

Comment Period/Outreach 

Comment 1: NMFS received several 

comments regarding the length of the 

comment period as a result of 

hurricanes. These comments are: due to 

the impacts of Hurricane Katrina on the 

fishing fleets in the Gulf of Mexico and 

the lack of communication with people 

in that area, NMFS should consider a 

substantial extension of the comment 

period and consideration of suspending 

the scheduled public hearings; a large 

portion of the longline fleet is damaged 

and without communications - they 

cannot respond to the proposal at this 

time; we are sensitive to extension of 

comment period to accommodate the 

Gulf of Mexico Area, but we do not 

want to see an overly lengthy delay in 

the process. 

Response: NMFS agrees that 

Hurricanes Katrina and Rita severely 

affected fishermen, infrastructures, 

communication, and communities in 

the Gulf of Mexico region. As a result, 

NMFS extended the comment period on 

the Draft Consolidated HMS FMP and 

proposed rule from October 18, 2005, to 

March 1, 2006. NMFS also rescheduled 

three public hearings in the area from 

September/October to January and 

February. NMFS believes that this 

extension in the comment period and 

rescheduling of public hearings gave 

affected entities an opportunity to 

review and comment on the Draft 

Consolidated HMS FMP and its 

proposed rule without delaying the 

implementation of the management 

measures significantly. 

Comment 2: NMFS received a number 

of comments about the advertisement of 

public hearings and the Draft 

Consolidated HMS FMP including: 

many of the public hearings are not well 

publicized, which leads the Agency to 

miss a lot of key people at those 

hearings; a lot people at the fish pier did 

not know about this hearing; NMFS 

should hold additional hearings in the 

same areas; without better publication 

to increase participation, NMFS is not 

going to get enough comment from the 

people who are going to be affected by 

this rule; NMFS should improve its 

outreach to magazines; NMFS needs to 

buy mail and email lists of anglers from 

publicly available sources and send 

them meeting notices to ensure 

adequate public participation; NMFS 

should use the mailing and email 

addresses provided when applying for 

permits to notify the industry; NMFS 

has adequately informed us through 

various sources (e.g., internet, facsimile, 

and public hearing notices) of all 

germane and relevant issues, options, 

and comment deadlines; your notices 

are all fuzzy, full of Federal Register 

type language - they should be earlier in 

the process, more widely distributed, 

and focused on the user groups in 

simple language. 

Response: NMFS agrees that public 

participation and outreach regarding 

proposed or final management measures 

is critical to the management of HMS. 

NMFS attempts to notify all interested 

parties of all actions using a variety of 

methods. The official notification is 

through the Federal Register. The 

Federal Register is available on the web 

at http://www.gpoaccess.gov/fr/ 

index.html. Alternatively, interested 

parties can go to http:// 

www.regulations.gov to review and 

comment on all proposed rules and 

documents open for public comment 

throughout the Federal government. 

Documents can be searched by Agency, 

topic, and date. NMFS also releases 

information regarding proposed and 

final rules and fishing seasons for HMS 

through the HMS fax network. NMFS 

intends to develop an email system that 

will allow anyone to sign up to receive 

these information packages. These 

information packages are also usually 

published on Fishnews, an electronic 

newsletter produced weekly by NMFS. 

To sign up for this newsletter, go on the 

web to http://www.nmfs.noaa.gov. 

NMFS issues press releases, which the 

media can publish in fishing magazines 

and local newspapers, regarding public 

hearings and proposed rules. However, 

NMFS cannot require these sources of 

information to publish information 

regarding proposed rules or public 

hearings. NMFS has tried using the 

email addresses included in the permit 

application to provide HMS fishermen 

with information about their permits. 

Often times, the email addresses have 

proved incorrect and the information 

was not delivered. Nonetheless, NMFS 

is working to improve communication 

with constituents and is open to 

additional suggestions on how to 

improve outreach. 

Comment 3: I found the public 

hearing presentations completely 

frustrating with biomass, metric tons, 

and other words and numbers used as 

if I were in a marine biology class. At 

the end of the presentation, the billfish 

and tuna changes were slipped in as if 

to lull us into sleep so that the changes 

slip by unnoticed. It appeared as if the 

intent of the presentation was to confuse 

the average angler with statistical data. 

Response: NMFS agrees that 

information regarding stock status and 

quotas can be confusing. However, this 

information is the basis for many of the 

management measures that were 

proposed and will be the basis of many 

of the final management measures. 

Without an understanding of the basic 

information regarding life history, stock 

status, maximum sustainable yield, and 

other concepts, the reasons and impacts 

of all the alternatives considered cannot 

be explained. NMFS presented the 

information to explain the basis of any 

proposals or decisions and why one 

alternative was preferred over another. 

NMFS welcomes any specific comments 

on the presentations that would 

improve the clarity of the presentations. 

Comment 4: If NMFS accepts 

comments by email, the Agency should 

require Digital Certificates to 

authenticate that the comments were 

from the identified party and was not 

contaminated in transit. 

Response: NMFS accepts comments 

by email. To date, NMFS has not had 

any problems regarding authenticating 

the sender of the comment. However, 

NMFS will continue to examine this 

and other technological issues. 

Comment 5: Please limit your future 

rulemakings to fewer topics. Large 

documents like this one are too difficult 

for many of your constituents to 

comprehend. 

Response: NMFS agrees that large 

documents with many issues are 

difficult to understand. To the extent 

that rulemakings can be limited, NMFS 

will attempt to simplify and reduce the 

issues in the future. However, to some 

extent, rulemakings are dictated by 

priorities and the need to act on certain 

issues. Thus, some rulemakings may 

have more issues than others. 

General 

Comment 1: NMFS received several 

comments on how the overall 

rulemaking process works. These 

comments include: NMFS needs to 

clarify if we have a choice or if the 

decision on these proposed actions is 

already made?; what agency is pushing 

for these changes?; there is an 

overriding opinion that NMFS does not 

listen during these comment periods; it 

is difficult for us to know how and 

where to get involved; during scoping, 

it would be nice to know that the 

information we provide is helping to 

form future regulations. 

Response: NMFS relies on public 

comment and participation at all stages 

when conducting rulemaking. The 


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comments received during scoping were 

crucial for defining the scope of this 

rulemaking and the alternatives 

considered. The issues explored in the 

rulemaking were not ‘‘pushed’’ by any 

particular agency. Rather they were 

considered as a result of the comments 

received during scoping and 

management needs as dictated by the 

Magnuson-Stevens Act and other 

domestic laws. Public comment at the 

proposed rule stage is critical in helping 

NMFS decide whether to implement 

certain measures. Often, as a result of 

public comment, NMFS decides not to 

implement or to redesign one or more of 

the proposed management measures. 

For example, in this rulemaking NMFS 

is not implementing several proposed 

measures including removal of the 

Angling Category North/South line and 

clarifying the commercial definition of 

greenstick. When considering public 

comments, NMFS does not look at the 

quantity of public comments received 

but the quality and issues raised in each 

individual comment. Every written 

comment and every statement made at 

a public hearing is considered. In every 

final rule, NMFS responds to the 

comments received during the public 

comment period. At that time, 

interested parties can see how their 

comments affected the decisions of the 

Agency. 

Comment 2: I am opposed to 

management via Petition for 

Rulemaking. It undermines the role of 

the Advisory Panels and the 

International Advisory Committee. 

Response: The public may petition an 

agency for rulemaking. NMFS is 

required to respond to any petition that 

is filed. This process does not 

undermine the role of the Advisory 

Panel or the ICCAT Advisory Committee 

as these parties can comment on the 

adequacy of the Petition for 

Rulemaking, as appropriate, or any 

rulemaking that results from the 

Petition. 

Comment 3: NMFS received several 

comments regarding the relationship of 

the FMP to the Magnuson-Stevens Act 

including: Will this FMP be consistent 

with the revisions/reauthorization of the 

Magnuson-Stevens Act?; NMFS is not 

following its own rules in regard to 

National Standard 4 of the MagnusonStevens Act (fair and equitable 

distribution of fishing privileges). 

Response: The Final Consolidated 

HMS FMP will be consistent with the 

current Magnuson-Stevens Act, 

including the National Standards. In 

regard to National Standard 4, none of 

the selected alternatives discriminate 

between residents of different states. 

While NMFS is tracking congressional 

actions to reauthorize the MagnusonStevens Act, it cannot predict the 

outcome of the reauthorization process. 

If the M-S Act is reauthorized, NMFS 

will implement appropriate changes in 

a future rulemaking. 

Comment 4: What management 

measures are applicable to the 

Caribbean? 

Response: All management measures 

for HMS are applicable to fishermen 

fishing in the Atlantic, including the 

Gulf of Mexico and the Caribbean. 

Comment 5: NMFS is allowing so 

much overfishing of one species after 

another, that our children have no 

expectation of there being any fish in 

the ocean when they grow up. 

Response: While overfishing does 

continue for some species, other species 

are being rebuilt. In the case of HMS, 

since the 1999 FMP, blacktip sharks 

have been rebuilt and other species such 

as bigeye tuna and Atlantic sharpnose 

sharks are still considered healthy. 

NMFS continues to monitor the status of 

all HMS and take appropriate action, 

consistent with the Magnuson-Stevens 

Act and ATCA, to prevent overfishing, 

rebuild overfished stocks, and maintain 

optimum yield. 

Comment 6: For any HMS 

management program to be effective, 

fair, and reasonable to U.S. fishermen 

and anglers, international transference 

and comparable compliance of 

management mitigation measures must 

be adopted by the global HMS fishing 

community. Our fishermen practice and 

embrace the most effective and stringent 

conservation measures in the world and 

U.S. fishermen and anglers suffer 

economic hardships and fishing days 

due to these measures. However, few 

international partners practice any 

conservation at all. The U.S. needs to 

continue to lead the conservation 

initiative, but it is unfair to assume that 

other countries will follow our example 

if we only put our fishermen out of 

business or deny them the opportunity 

to fish for quota. 

Response: NMFS agrees that effective 

management of HMS requires 

international cooperation and 

compliance to management measures. 

NMFS also agrees that the U.S. needs to 

indicate to other nations that U.S. 

fishermen can meet their conservation 

goals while also remaining 

economically viable. NMFS and the 

Department of State continue to work 

through ICCAT to enforce compliance of 

existing management measures and end 

illegal, unreported, and unregulated 

fishing. Additionally, in this 

rulemaking, NMFS either provides 

additional opportunities for U.S. 

fishermen to take the quota (e.g., 

changing the time periods and 

subquotas for the General category) or 

provides the groundwork for future 

opportunities (e.g., establishes criteria to 

modify existing time/area closures). 

Comment 7: Remove ‘‘including 

landings’’ from the third bullet on the 

bottom half of page 1–40 of the Draft 

Plan. The emphasis is properly on 

reducing mortality and post-release 

mortality. 

Response: This comment refers to one 

of the specific goals of this rulemaking, 

not one of the objectives of the FMP. 

NMFS agrees and has reworded the goal 

accordingly. 

Comment 8: In the Management 

History (section 1.1), include ATCA 

provision, ‘‘shall not disadvantage U.S. 

fishermen relative to their foreign 

counterparts.’’

Response: That provision (evaluate 

the likely effects of conservation and 

management measures on participants 

and minimize, to the extent practicable, 

any disadvantage to U.S. fishermen in 

relation to foreign competitors) is not a 

requirement of ATCA. It is a 

requirement under the MagnusonStevens Act (16 U.S.C. 1854 (g)(1)(B)). A 

description of this provision is included 

in the description of the management 

history in Chapter 1 and the 

requirements of the Magnuson-Stevens 

Act in Chapter 11 of the HMS FMP. 

Comment 9: In the section of Chapter 

1 regarding the pre 1999 Atlantic tunas 

management section, NMFS needs to 

clarify that the longline fishery does not 

seek a directed fishery on the currently 

overfished stock of bluefin tuna. 

Response: This section has been 

moved to Chapter 3 in the Final 

Consolidated HMS FMP. Together, this 

section along with the other sections in 

Chapter 3 regarding the landings by gear 

and the status of the stocks indicate that 

the pelagic longline fishery is prohibited 

from targeting bluefin tuna. 

Comment 10: The HMS longline 

fishery was unaware of NMFS’s 

‘‘technical revisions’’ following 

completion of the HMS FMP in 1999, 

which changed the Atlantic Tunas 

longline permit to a ‘‘limited access’’

status. NMFS should create an 

opportunity for longline vessels with 

valid swordfish and shark permits to 

obtain an Atlantic Tunas longline 

permit. This will help to reduce or 

eliminate unnecessary discards and 

encourage the return of pelagic longline 

fishing effort. 

Response: As described in the 1999 

Atlantic Tunas, Swordfish, and Shark 

FMP, NMFS made the Atlantic tunas 

longline permit a limited access permit, 

along with the swordfish and shark 

permits, at the request of the fishing 


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industry in order to close a potential 

loophole in the regulations. The 

technical revisions to the rule 

implementing the 1999 FMP clarified 

that intent and did not make any 

substantial changes. Nonetheless, NMFS 

intends to conduct a rulemaking to 

reform certain aspects of the HMS 

permitting system and may consider 

changes based on this concern in that 

rulemaking. 

i. Recreational 

Comment 11: NMFS received general 

comments related to recreational fishing 

including: I will not stand for the overregulation of recreational fishing; and, 

NMFS has done nothing for the 

recreational fisherman but give him 

table scraps and ruined fishery 

resources. 

Response: NMFS recognizes the value 

and important contribution of 

recreational fishermen throughout HMS 

fisheries. The Agency continues to take 

numerous steps to recognize this critical 

sector of the fishery, while ensuring that 

recreational effort is properly accounted 

for and managed to assist stock 

recovery. Comments from the 

recreational sector, and others, were 

fully considered in deciding upon the 

management measures in the Final 

Consolidated HMS FMP. For example, 

NMFS did not select the alternative that 

would have prohibited landings of 

white marlin based, in part, upon 

comments indicating that this 

alternative could produce sizeable 

adverse social and economic impacts 

upon recreational fishermen. NMFS 

believes, however, that the selected 

alternative to require circle hooks when 

using natural baits in billfish 

tournaments is appropriate, and is not 

overly burdensome. Many HMS 

recreational anglers already practice 

catch and release fishing for white 

marlin and other species. However, the 

mortality rate associated with catch and 

release of these species is now estimated 

to be substantially higher than 

previously thought. The use of circle 

hooks when deploying natural bait in 

billfish tournaments is an important 

step towards reducing billfish fishing 

mortality, and will help to maintain the 

highest availability of billfishes to the 

United States recreational fishery. 

Billfish tournament anglers must 

comply with the new circle hook 

requirement so that these species may 

better survive the catch and release 

experience. NMFS strongly disagrees 

with the comment that recreational 

fishermen have been given table scraps 

and ruined fishery resources. Numerous 

examples could be cited to demonstrate 

the balanced consideration that is given 

to recreational HMS fishery interests. 

Foremost, the recreational sector is, and 

will continue to be, prominently 

represented on the HMS Advisory 

Panel. Additionally, several large areas 

are closed year-round or seasonally to 

commercial HMS longline vessels, 

whereas recreational anglers retain full 

access to these areas. The recreational 

sector has benefited greatly from this 

access, and is currently enjoying the 

resurgence of recreational fishing for 

swordfish and other species in these 

areas. Also, the commercial sale of 

Atlantic billfish has been prohibited 

since 1988. To reinforce the recreational 

nature of this fishery, this rule prohibits 

the possession or retention of any 

Atlantic billfish for vessels issued a 

commercial permit and operating 

outside of a tournament. This rule also 

prohibits fishing for HMS in the 

Madison-Swanson and Steamboat 

Lumps Marine Reserves, with the 

notable exception that high-speed 

trolling is allowed during the prime 

recreational summer fishing months. 

Comment 12: Recreational fishing 

should be truly recreational fishing. A 

CHB vessel operator knows where to go 

fishing, so it gives the recreational 

fisherman onboard an advantage. CHB 

vessel operators use this expertise to sell 

the catch from the recreational fishery. 

This practice gives access to the 

recreational fishery where only the 

commercial fishermen typically go. The 

CHB vessel is already getting paid to go 

out there, he does not need to also get 

money from selling the tunas. NMFS 

should decrease bag limits on charter/ 

headboats to avoid incentive to sell 

recreationally caught fish. 

Response: NMFS regulates and 

manages HMS CHB permit holders 

differently than HMS recreational or 

commercial permit holders due to the 

unique characteristics of the CHB sector. 

These vessels may be both recreational 

and commercial, so the regulations 

governing them are necessarily 

different. For instance, some CHB 

captains may fish commercially for 

tunas on one trip, and then fish under 

recreational retention limits when 

carrying paying passengers the next day. 

NMFS believes that the regulations 

governing the sale of HMS from CHB 

vessels are appropriate. CHB vessels 

that also possess commercial limited 

access permits are subject to 

recreational catch limits when engaged 

in for-hire fishing, but may sell tunas 

(except for BFT caught under the 

recreational angling category 

regulations, i.e., BFT between 27 inches 

and 73 inches CFL or trophy fish greater 

than 73 inches) on non for-hire trips. 

CHB vessels may sell sharks and 

swordfish only if the appropriate 

commercial shark and/or swordfish 

permits have also been issued to the 

vessel. 

ii. Commercial Fishery 

Comment 13: The U.S. should inflict 

penalties and tariffs on countries that do 

not follow similar rules as the U.S.; 

push to stop longlining worldwide; stop 

all longlining in the United States now; 

and make it illegal to import any fish 

from other countries that longline, do 

not follow conservation limits, and do 

not require longlines to only use circle 

hooks. 

Response: The U.S. has been a leader 

internationally in promoting fishing 

practices that reduce bycatch and 

promote conservation of HMS and other 

fish stocks. Pelagic longlining gear is not 

being prohibited at this time due to 

reasons discussed in the response to 

Comment 36 of the Time/Area Closures 

section. NMFS believes that 

international cooperation, including 

sharing science and technology such as 

circle hooks and bycatch reduction 

gears, is the primary and most effective 

means to achieve conservation goals. 

The U.S. will continue to promote these 

types of measures both domestically and 

internationally, and will encourage 

efforts by other countries to implement 

similar measures. 

Comment 14: Are fish that are caught 

by commercial permit holders and 

retained for personal use counted 

against the quota? 

Response: This rule prohibits vessels 

issued commercial permits and 

operating outside of a tournament from 

possessing, retaining, or taking Atlantic 

billfish from the management unit. 

Under this rule, only fishermen issued 

either an HMS Angling or Charter/ 

headboat permit could take or possess 

Atlantic billfish. Additionally, General 

category fishermen fishing in a 

registered tournament could take and 

possess Atlantic billfish. In the case of 

General category fishermen 

participating in a tournament, the 

tournament operator must report any 

billfish landed in the tournament. 

Charter/headboat vessel owners are 

required to report billfish under the 

recreational reporting requirements. 

Atlantic marlin landings are counted 

against the 250–fish landing limit. All 

landings from commercial shark or 

swordfish vessels must be reported in 

the HMS logbook, if selected for 

reporting, regardless of whether the fish 

are retained for personal use. Sharks 

landed by commercial permit holders 

are counted against commercial quotas. 

A swordfish from the North Atlantic 

stock caught prior to a directed fishery 


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closure by a vessel with a directed or 

handgear swordfish permit is counted 

against the directed fishery quota. A 

North Atlantic swordfish landed by a 

vessel issued an incidental swordfish 

permit or a Charter/headboat permit or 

landed after the directed swordfish 

fishery is closed is counted against the 

incidental catch quota. Owners of 

Atlantic Tunas vessels must also report 

landings in the HMS logbook, if selected 

for reporting. There are no quotas for 

bigeye, albacore, yellowfin, or skipjack 

tunas. BFT landed but not sold must be 

reported and are applied to the quota 

category according to the permit 

category of the vessel from which it was 

landed. 

Comment 15: All commercial vessels 

that have not landed a fish in the past 

three years should be ‘‘retired.’’

Response: Commercial fishermen can 

take time away from fishing for certain 

species for numerous reasons including 

repairs or replacement of vessels, a 

desire to help rebuild the stocks, or to 

pursue opportunities in other fisheries. 

Many PLL or shark fishermen have 

currently stopped fishing for HMS due 

to restrictions such as the time/area 

closures and short shark seasons. 

Additionally, for some commercial 

fisheries, such as the BFT General 

category fishery, the quota does not 

allow every permit holder to land a fish 

every year. Thus, some vessels may not 

land a BFT for several years. In some 

fisheries, such as those that are severely 

overfished, such a measure may be 

needed to ensure that latent permit 

holders cannot re-enter the fishery and 

increase effort. NMFS may conduct a 

rulemaking in the future to reform the 

current permit structure. At that time, 

NMFS may consider measures such as 

this one, as necessary. 

Comment 16: NMFS heard two 

opposing comments related to 

commercial vessels affected by the 

hurricanes last fall. These comments 

were: NMFS needs to provide buyout 

programs for the commercial fishery, 

especially now that vessels active in this 

fishery have been affected by hurricane 

Katrina; and NMFS should not 

subsidize the replacement of 

commercial vessels affected by 

hurricane Katrina. 

Response: NMFS is still analyzing the 

impacts of Hurricanes Rita and Katrina 

on fishermen and communities in the 

Gulf of Mexico. At this time, NMFS 

does not know the extent of lasting 

damage or the most appropriate 

measures needed to rebuild the affected 

fisheries, either commercial or 

recreational. NMFS will take the 

appropriate actions in the future, as 

needed. 

iii. Longline 

Comment 17: Why are there no 

proposed measures for the commercial 

PLL fishery in the Draft Consolidated 

HMS FMP? 

Response: Many measures in the HMS 

FMP could have ancillary impacts on 

PLL fishery such as the selected 

alternative C3, going to ICCAT regarding 

a rebuilding plan for northern albacore 

tuna, and the selected alternative G2, 

the transition to a calendar year fishing 

years. There are also alternatives that 

specifically consider the PLL fishery. 

All of the alternatives in the time/area 

closure section, except for alternative 

B6, were considered for the PLL fishery 

in the Draft Consolidated HMS FMP. 

NMFS is not selecting, at this time, to 

implement any new closures, except the 

complementary measures in the 

Madison-Swanson and Steamboat 

Lumps Marine Reserves, which will 

prohibit fishing for and possessing all 

HMS by all HMS gears in the marine 

reserves from November through April 

(except when transiting and the gear is 

stowed). The possession of Gulf reef fish 

in these areas is already prohibited yearround (except when transiting and the 

gear is stowed). From May through 

October, surface trolling will be the only 

allowable HMS fishing activity. No new 

measures were proposed at this time 

because there are already a number of 

restrictions, including time/area 

closures, gear requirements, VMS, 

observers, and a host of other measures 

required to reduce bycatch in the PLL 

fishery. However, NMFS will continue 

to examine the issue of targeted time/ 

area closures to further reduce bycatch 

in the future. Other alternatives that 

could specifically affect PLL fishermen 

include workshops, changes to the 

definition of PLL gear, modifications to 

the definition of the East Florida Coast 

closed area, and the decision regarding 

the 25 mt BFT available in the NED. 

Comment 18: NMFS should allow the 

practice of using live baits on PLL gear 

again. 

Response: Currently in the Gulf of 

Mexico, vessels with PLL gear onboard 

are prohibited from deploying or fishing 

with live bait, possessing live bait, or 

setting up a well or tank to maintain live 

bait. This prohibition was implemented 

in lieu of closing the western Gulf of 

Mexico through a final rule published 

on August 1, 2000 (65 FR 47214), and 

became effective on September 1, 2000. 

It was established to reduce the bycatch 

of billfish on PLL gear, and this remains 

an important priority. However, given 

the recent mandatory requirement for 

PLL vessels to possess and deploy only 

large circle hooks and to carry release 

and disentanglement gear, a 

reexamination of the live bait 

prohibition may be warranted. Before 

this issue could be considered in a 

future rulemaking, it would be 

beneficial to obtain additional gear 

research information, such as bycatch 

rates and post-release mortality rates of 

billfish on PLL gear deploying large 

circle hooks with both live and dead 

baits. 

Comment 19: Without a relaxation of 

the restrictions, the longline fishery will 

continue to fail — not due to stock 

declines but due to over-restrictions. 

Response: The PLL fishery has 

decreased in size over time possibly due 

to current time/area closures but also 

due to other factors, which are out of 

NMFS control (e.g., hurricanes, fuel 

prices, etc.). At this time, NMFS is not 

implementing any new closures, except 

the complementary measures in the 

Madison-Swanson and Steamboat 

Lumps Marine Reserves. The U.S. has 

not been able to catch its swordfish 

ICCAT quota allocation. While NMFS 

considered modifications to current 

time/area closures, none of the 

modifications considered would have 

resulted in a large enough increase in 

target catch to alleviate concerns over 

uncaught portions of the swordfish 

quota. NMFS is investigating ways to 

revitalize the swordfish fishery and is 

waiting on the results of the ICCAT 

stock assessments to help determine 

domestic measures with regard to 

management of these species. 

iv. Swordfish 

Comment 20: NMFS received 

comments regarding the trade of 

swordfish including: Is there anything 

in the Draft Consolidated HMS FMP 

regarding the import of swordfish from 

countries that have exceeded their 

ICCAT quota? This exceedance has been 

a perennial problem at ICCAT Advisory 

Committee Meetings and it is annoying 

when fishermen say that this type of 

fishing encroaches on ‘‘our’’ fishery 

when it is the fishery as a whole, not 

only the U.S. swordfish fishery; U.S. 

swordfish fishermen should be provided 

reasonable opportunity to harvest quota 

- U.S. has a high demand that U.S. 

fishermen should have an opportunity 

to fill; NMFS should prohibit all 

imports on swordfish and tuna. 

Response: ICCAT is an international 

organization that addresses quota 

overages and penalties associated with 

those overages through a process that 

requires the adoption of 

recommendations and then 

implementation of those 

recommendations by contracting 

parties. The U.S. is a contracting party 


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at ICCAT and participates in the 

evaluation of compliance with quotas. 

Quota compliance is an important issue 

right now for the U.S. during ICCAT 

negotiations. However, ICCAT would be 

the lead in imposing trade sanctions or 

other appropriate penalties on a 

particular country if found to be 

violating ICCAT agreements. Such 

actions have been taken by ICCAT in the 

past. Also, NMFS agrees that 

overharvests of ICCAT quotas affect the 

entire swordfish fishery and not just the 

U.S. allocation, and it is important to 

manage the fishery as a whole and not 

to become too focused on just the U.S. 

quota. NMFS is currently working on 

different ways to revitalize the U.S. 

swordfish fishery. An SCRS stock 

assessment is scheduled for 2006, and 

the results from this stock assessment 

will help determine domestic measures 

for this species. 

Comment 21: NMFS received 

comments regarding the need to 

revitalize the PLL and/or swordfish 

fishery including: in the face of our 

consistently rolled-over quota and fullyrebuilt swordfish stock, why are there 

no provisions to allow for U.S. 

fishermen to get newer, more efficient, 

and safer vessels?; NMFS should 

eliminate the vessel upgrading 

restrictions to help revitalize the PLL 

fishery; what is there in the Draft 

Consolidated HMS FMP that would 

allow the U.S. ICCAT Delegation to 

convince foreign ICCAT Delegations 

that the U.S. is serious about revitalizing 

its swordfish fishery in order to utilize 

the full U.S. ICCAT swordfish quota?; 

NMFS should make reasonable 

adjustments to the offshore borders of 

existing closed areas; eliminate the 

limited access upgrading criteria; reevaluate the use of ‘‘live bait’’ for circle 

hooks only; provide a more reasonable 

trip limit for incidental PLL to eliminate 

wasteful and unnecessary regulatory 

discarding; re-open the swordfish 

handgear fisheries, especially in light of 

the inability of the U.S. to land its 

current ICCAT quota; the U.S. is looking 

at a stockpile for swordfish and BFT; if 

the U.S. does not have any quota it will 

be difficult to have a voice in 

international negotiations; $86 million 

of swordfish was not caught; this 

domestic fleet is so over restricted that 

it cannot harvest the quota; count 

recreational swordfish live and dead 

releases as well as commercial catches 

when negotiating the U.S. quota at 

ICCAT; eliminate the recreational bag 

limit to be replaced with a higher 

minimum size of 47 inches LJFL and 

authorize anyone holding a general 

category tuna permit to land swordfish; 

increase the number of swordfish that 

may be kept by swordfish incidental 

permit holders in the Gulf of Mexico or 

convert all Gulf of Mexico incidental 

permits to directed permits; adjust the 

existing PLL time/area closures within 

the U.S. EEZ in consideration of a fully 

rebuilt North Atlantic swordfish stock 

and the U.S. swordfish fishery’s ability 

to harvest its ICCAT quota share; 

longline fishermen made great sacrifices 

to rebuild this fish stock and have been 

the world’s leading innovators of 

‘‘bycatch friendlier’’ pelagic hook and 

line fishing — NMFS must take action 

to revitalize this fishery. 

Response: For the past several years, 

the swordfish fishery has been unable to 

catch the full quota. This is a change 

from the fishery in the 1990s where the 

quota was usually taken. In 1997, the 

quota was overharvested and the fishery 

was closed. There are a number of 

possible explanations for the inability of 

the fleet to harvest the quota including 

time/area closures to PLL (the primary 

gear used to harvest swordfish), the 

reduction in permit holders through 

limited access, the restrictions on vessel 

upgrading, the incidental take limits, 

and the paucity of reporting from the 

recreational sector. Given the 

anticipated rebuilt status of swordfish 

(the next stock assessment is scheduled 

for September 2006), a number of 

fishermen and others have asked NMFS 

to revitalize this fishery. Many people 

are concerned that without a plan to 

revitalize the fishery, the quota will be 

taken from the U.S. and given to other 

countries, many of which do not view 

conservation as the U.S. does. NMFS is 

also concerned about the status of this 

fishery and its quota. While this 

rulemaking was not intended to 

revitalize the swordfish fishery, many of 

the actions will allow for actions to be 

taken in the future. For example, NMFS 

did not choose to modify any existing 

closures at this time but the selected 

criteria will allow for modifications to 

the closed areas and/or experiments to 

test gears or other fishing methods in 

the closed areas. Additionally, NMFS is 

defining buoy gear and clarifying the 

difference between this commercial gear 

and the primarily recreational gear of 

handline. Depending on the stock 

assessment and the upcoming ICCAT 

recommendations, NMFS expects to 

engage in rulemaking in the near future 

that could help revitalize the swordfish 

fishery. Any effort to revitalize the 

fishery must take care not to increase 

sea turtle takes (the PLL fishery has a 

jeopardy conclusion under ESA for 

leatherback sea turtles), marine mammal 

interactions (there is a PLL Take 

Reduction Team that is considering 

methods of reducing interactions under 

the Marine Mammal Protection Act), 

and catches of marlin, BFT, and other 

overfished species. Over time, 

consistent with the objectives of this 

FMP, the Magnuson-Stevens Act, 

Marine Mammal Protection Act, and the 

ESA, NMFS intends to revitalize the 

fishery so that swordfish are harvested 

in a sustainable and economically viable 

manner and bycatch is minimized to the 

extent practicable. 

Comment 22: NMFS received 

comments regarding the trip limit for 

swordfish incidental limited access 

permit holders. These comments 

included: NMFS must reevaluate the 

incidental swordfish trip limits in order 

to reduce or eliminate unnecessary 

discards by valid permit holders; there 

was an allowance of five swordfish in 

the squid fishery. If a swordfish comes 

aboard in a trawl, it is dead. Mid-water 

trawls are not directing or targeting 

swordfish. So, can there be an 

allowance for 15 swordfish in a midwater trawl? It seems to be a waste to 

throw dead swordfish overboard. 

Response: The current trip limits for 

incidental permit holders and permit 

holders using mid-water trawls were 

implemented in 1999 as part of the 

limited access program for swordfish. At 

that time, swordfish were overfished, 

there were a number of latent permit 

holders, and the quota was being 

landed. Thus, the limited number of 

swordfish that could be landed by 

incidental permit holders or permit 

holders using mid-water trawls (an 

unauthorized gear) was appropriate and 

was aimed at reducing swordfish 

mortality by fishermen not targeting 

swordfish, to the extent practicable. The 

situation has now changed and, 

depending on the results of the 

upcoming 2006 stock assessment, NMFS 

may reconsider these limits in a future 

rulemaking. 

Comment 23: U.S. recreational 

fishermen should be allowed to sell 

their swordfish. 

Response: Under current HMS 

regulations, recreational fishermen are 

not allowed to sell HMS. If fishermen 

wish to sell their swordfish, they must 

possess a commercial swordfish limited 

access permit or obtain one from 

commercial fishermen who are leaving 

the fishery. Anecdotal information 

indicates there are a number of 

commercial swordfish permits available. 

However, depending on the type of 

swordfish permit obtained (directed, 

handgear, or incidental) these permits 

could restrict fishermen to the 

commercial suite of permits and they 

would not be able to obtain either an 


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HMS Angling or HMS Charter/Headboat 

permit. All recreational landings are 

counted against the domestic quota for 

swordfish (300 mt dw of the quota are 

allocated for recreational landings). 

Comments in the past have indicated 

concern to the public health regarding 

the quality of recreationally-caught 

swordfish. These commenters have 

noted that while commercial fishermen 

are trained and have the facilities to 

maintain fresh swordfish, recreational 

fishermen generally keep the swordfish 

in a cooler. Nevertheless, as discussed 

in Comment 22 above, fishermen have 

requested that NMFS revitalize the 

swordfish fishery. The suggestion in this 

comment may be one potential option 

for such a goal. 

v. Tunas 

Comment 24: The Draft Consolidated 

HMS FMP does not consider the 

uncertainty associated with estimates of 

recent BFT recruitment in recent years, 

the probable outcomes for BFT under 

different estimates, or the impact on 

rebuilding of the current high mortality 

in the Gulf of Mexico. The Draft 

Consolidated HMS FMP needs to 

consider this while also keeping in 

mind the feasibility of changing ICCAT 

management measures and quotas at the 

upcoming ICCAT meeting. 

Response: The ecological impacts of 

this final action on BFT are at most, 

minimal. The overall quotas for each 

domestic fishing category are not 

changed, nor are the size classes of BFT 

that each domestic category targets. The 

selected alternatives for BFT comply 

with the ICCAT BFT rebuilding plan, 

which considers the uncertainty 

associated with BFT stock assessment 

analyses and reviews the efficacy of 

additional management options to 

reduce BFT bycatch in the Gulf of 

Mexico. The selected alternatives also 

continues the prohibition on directed 

fishing for BFT in the Gulf of Mexico. 

ICCAT is scheduled to reassess the West 

Atlantic BFT stock in June 2006, and the 

assessment will be evaluated at the 

upcoming annual ICCAT meeting in 

November 2006. NMFS will implement 

any changes to the rebuilding plan as 

required under ATCA. 

Comment 25: Filleting tunas at-sea 

should be acceptable on HMS CHB 

vessels. By allowing filleting at-sea, the 

catch can be prepared and put on ice 

much sooner than if cleaning occurs 

upon returning to the dock; it will be 

better for public safety because tuna 

deteriorate quickly in warm summer 

and fall months; and preparing tuna 

sooner also improves the quality of the 

meat, and ultimately, angler satisfaction. 

The season is relatively short, so 

filleting at-sea allows for a quicker turn 

around time between trips. It will not 

compromise enforcement of size limits, 

retention limits, and species 

identification. Retaining the racks can 

facilitate enforcement. 

Response: Under current regulations 

at 50 CFR 635.30(a), ‘‘persons who own 

or operate a fishing vessel that possesses 

an Atlantic tuna in the Atlantic Ocean 

or that lands an Atlantic tuna in an 

Atlantic coastal port must maintain 

such Atlantic tuna through offloading 

either in round form or eviscerated with 

the head and fins removed, provided 

that one pectoral fin and the tail remain 

attached.’’ ‘‘Eviscerated’’ is defined as a 

fish that has only the alimentary organs 

removed. The regulations are intended 

to aid in enforcing the minimum size 

limit, retention limits, and species 

identification. Over the past several 

years, the HMS CHB industry, more 

specifically the headboat sector, has 

requested that it be exempt from the 

current regulations and allowed to fillet 

Atlantic tunas at sea. While authorizing 

filleting at-sea may have social and 

economic benefits for the industry as 

the commenter suggests, waiving the 

current regulations could render 

enforcement of size limits, retention 

limits, and species identification 

difficult, thus NMFS is not able to 

authorize such actions at this time. 

vi. Sharks 

Comment 26: NMFS has placed 

sharks as the lowest priority. NMFS has 

not adequately addressed persistent 

overfishing, population depletion, and 

the need for a precautionary approach 

with regard to a number of 

exceptionally vulnerable coastal and 

pelagic shark species. The Draft 

Consolidated HMS FMP lacks goals, 

timetables, and milestones toward 

conserving sharks and their habitats. 

Response: The implementing 

regulations for Amendment 1 to the 

1999 FMP for Atlantic Tunas, 

Swordfish, and Sharks (December 24, 

2003; 68 FR 74746) included 

management measures to address 

overfishing and population depletion of 

sharks. These management measures 

included, but were not limited to: 

aggregating the LCS shark complex, 

using MSY as a basis for setting 

commercial quotas, implementing a 

4,000 lb trip limit in the commercial 

LCS fishery, establishing regional 

commercial quotas and trimester 

seasons, establishing gear restrictions to 

reduce bycatch, and establishment of a 

time area closure in the mid Atlantic 

region from January to July each year to 

reduce interactions with sandbar and 

prohibited dusky sharks. There are also 

several shark management measures in 

this final rule that will address 

overfishing of finetooth sharks, improve 

shark dealer identification of 

commercially harvested shark species, 

and require fishermen to leave the 

second dorsal and anal fin on all 

commercially landed sharks to facilitate 

improved identification, among others. 

Furthermore, the HMS Management 

Division is currently engaged in a 

proposed rulemaking (March, 29, 2006; 

71 FR 15680) that may facilitate 

improved handling, release, and 

disentanglement of non-target bycatch, 

including sharks, sea turtles, and 

smalltooth sawfish. NMFS recently 

released a dusky shark assessment (May 

25, 2006; 71 FR 30123), and is 

considering the results of the Canadian 

porbeagle assessment. The final LCS 

stock assessment review workshop was 

held in June of this year, and the SCS 

stock assessment workshops will begin 

in 2007. Additional management 

measures for shark fisheries in the 

Atlantic Ocean may be implemented in 

the future, as necessary. 

Comment 27: NMFS should release 

and begin work to address the findings 

of LCS assessment as soon as possible. 

Response: The LCS stock assessment 

is following the SEDAR process, which 

emphasizes constituent and stakeholder 

participation in assessment 

development and transparency in the 

assessment process. As documents 

related to the LCS assessment are 

completed they have been placed on the 

SEDAR webpage at: http:// 

www.sefsc.noaa.gov/sedar/. The final 

LCS review workshop was held on June 

5–9, 2006. NMFS will review the final 

determinations from the workshop and 

proceed with regulatory or management 

actions as necessary, consistent with 

Magnuson-Stevens Act, the HMS FMP, 

and other federal laws. 

Comment 28: NMFS has relaxed the 

conservation framework for 

exceptionally vulnerable deepwater 

sharks by removing this special 

grouping from the management unit. 

Contrary to NFMS assertions, the 

finning prohibition alone is not 

sufficient to conserve these species. 

NMFS should add deepwater sharks to 

the list of prohibited shark species in 

subsequent rulemaking. 

Response: The deepwater sharks were 

added to the management unit in 1999 

because the Agency wanted to ensure 

that finning was prohibited for all 

sharks, including deepwater sharks. 

When deepwater sharks were included 

in the management unit, there were no 

other management regulations in place 

(i.e., permitting, reporting, trip limits, 

minimum size). NMFS believes that 


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maintaining data collection only on the 

deepwater sharks is sufficient because 

they are not targeted in the shark 

fishery. Prohibiting landings of these 

species would not likely reduce 

mortality, as most of these sharks are 

dead at haulback and take of these 

species is a rare occurrence. 

Furthermore, NMFS does not want to 

further jeopardize the collection of data 

on these species, which is a rare event, 

by including them in the prohibited 

species management unit. Currently, on 

the rare occasions when fishermen catch 

a deepwater shark, they can give it to a 

scientist. If the species were prohibited, 

every fisherman and scientist who 

might catch a deepwater shark and who 

would want to retain any part of it for 

research would need to have an EFP on 

the off chance that such a shark would 

be caught. Nonetheless, if directed 

fisheries for deepwater sharks are 

developed and/or extensive landings of 

these species begins to occur as bycatch 

in other fisheries, the Agency may 

implement additional measures. 

Comment 29: NMFS needs to review 

and release the long-awaited population 

assessment for dusky sharks, as a matter 

of priority. We are concerned about the 

more than 23,000 dusky sharks landed 

in 2003, despite their prohibited species 

status. NMFS should investigate and 

address this problem immediately. 

Response: The Southeast Fishery 

Science Center recently released the 

dusky shark assessment (May 25, 2006; 

71 FR 30123). This document is 

available on the internet (http:// 

www.sefscpanamalab.noaa.gov/shark/ 

pdf/DuskylSharklAssessment.zip). 

NMFS is also concerned about the status 

of dusky sharks; hence, this species has 

been on the prohibited species list since 

1999. In 2003, 23,288 lb dw of dusky 

sharks were reported landed in 

commercial shark fisheries. In 2004, 

only 1,025 lb dw of dusky sharks were 

landed. Effective January 1, 2005, the 

mid-Atlantic time/area closure closed 

commercial shark fishing with bottom 

longline gear from January 1 through 

July 31 of every year. This area was 

closed in part to reduce commercial 

fishery interactions with dusky sharks. 

NMFS may also implement additional 

management measures as a result of the 

recently released dusky shark 

assessment. 

Comment 30: NMFS received 

comments regarding management of 

porbeagle sharks including: The 

porbeagle population is 11 percent of its 

size in 1961 which is too low; Canada 

has already listed porbeagle sharks as 

endangered - the U.S. needs to prohibit 

all landing immediately and eliminate 

the directed quota for porbeagle sharks; 

we are concerned about the 

continuation of the directed quota for 

Northwest Atlantic porbeagles, given 

that this population has been proposed 

as ‘‘Endangered’’ by the IUCN SSG and 

Canada; NMFS should end the directed 

fishery for porbeagles by eliminating the 

directed commercial quota and allowing 

only incidental landings; we support 

NMFS stated interest in working with 

Canada to address porbeagle 

conservation - such negotiations will be 

more successful if the U.S. takes action 

to end directed porbeagle fisheries in 

U.S. waters; the U.S. should 

aggressively pursue no directed 

porbeagle shark fisheries with Canada 

and within ICCAT. 

Response: The U.S. has, on average, 

landed less than 1 mt of porbeagle 

sharks in the last four years, most of 

which was incidental, not directed 

catch. NMFS, however recognizes the 

ecological significance of the historical 

decline in porbeagle sharks, and is 

currently considering the stock 

assessment report recently completed by 

Canada in the fall of 2005. Management 

alternatives and regulations to prevent 

further declines in the porbeagle stocks 

will likely be considered in upcoming 

rulemaking actions, if necessary. 

Comment 31: NMFS needs to make 

permits available to Puerto Rican shark 

fishermen or allow them to retain sharks 

since they are retaining sharks anyway. 

Response: All fishermen fishing for 

HMS are already required through state 

regulations to have the appropriate HMS 

permits when fishing in state waters. 

Additionally, shark fishermen fishing in 

Federal waters are required to have the 

appropriate Federal HMS permit 

consistent with Federal regulations. 

Fishermen from all states and territories, 

including Puerto Rico and the Virgin 

Islands, may face enforcement action if 

they do not comply with Federal 

regulations. 

Comment 32: NMFS received two 

comments regarding the need to propose 

options for adding sharks to the 

prohibited species list including: NMFS 

has offered no alternatives in the Draft 

Consolidated HMS FMP to address 

depletion of these species (oceanic 

whitetip, silky sharks, and 

hammerheads); these species are not 

targeted but measures to avoid and 

reduce bycatch of these species are 

urgently needed. To reduce regulatory 

discards within the directed and 

incidental shark fishing fleets, NMFS 

should consider removing certain 

species of sharks from the prohibited 

species list, such as bignose, Caribbean 

reef, dusky, Galapagos, night, sand tiger, 

and Caribbean sharpnose. 

Response: NMFS did not consider 

changes to the prohibited species 

management unit in this rulemaking. 

Amendment 1 to the 1999 FMP for 

Atlantic Tunas, Swordfish, and Sharks 

established criteria for addition or 

removal of species to/from the 

prohibited species group. These four 

criteria include: there is sufficient 

biological information to indicate that 

stock warrants protection, the species is 

rarely encountered or observed caught 

in HMS fisheries, the species is not 

commonly encountered or caught as 

bycatch in fishing operations, and the 

species is difficult to distinguish from 

other prohibited species. NMFS may 

consider changes to the prohibited 

species management unit in a future 

rulemaking, if necessary. 

Comment 33: Because smooth dogfish 

is the only U.S. Atlantic shark that is 

subject to a directed fishery and not 

covered by management measures, 

NMFS should evaluate this fishery and 

assess the population. NMFS should 

begin this work immediately, present 

the findings to the Mid-Atlantic 

Fisheries Management Council 

(MAFMC), and suggest a way forward as 

soon as possible. 

Response: During the summer of 

2005, NMFS received a request from the 

MAFMC to transfer management of 

smooth dogfish to the council. NMFS 

asked for more information regarding 

why the MAFMC should have sole 

jurisdiction over the stock. NMFS 

continues to wait for a response and 

will work with the Regional Fishery 

Management Council(s) to determine 

the appropriate management body for 

this species. 

Comment 34: EPA noted that bycatch 

of SCS in the Gulf shrimp fishery fell 

approximately 46 percent following the 

introduction of turtle excluder devices 

in 1999. If this trend continues, this 

represents an encouraging level of 

success for the use of turtle excluder 

devices. EPA also noted that data entries 

for Table 3.90 in the Draft Consolidated 

HMS FMP for the year 1999 and 2000 

were the same and assumed that 2000 

data were estimated. 

Response: NMFS agrees that turtle 

excluder devices should reduce the 

amount of bycatch. Regarding 1999 and 

2000 data, 1999 data were calculated as 

the average of the value of 1992 to 1997 

divided by two in order to account for 

the effect of the turtle excluder devices. 

Data from 2000 were assumed to be the 

same as the 1999 data. 

Comment 35: EPA notes that Table 

3.90 indicates that the dressed weights 

of SCS are approximately one pound per 

shark. This suggests that these are small 


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sharks that would have little 

commercial value. 

Response: SCS are generally the small 

sharks, and they have the lowest 

commercial value of all Atlantic sharks, 

generally less than $0.50 per pound. 

Many fishermen use these species as 

bait. In 2004, not including shark fin 

values, the SCS fishery was worth 

approximately $340,000 compared to 

$2.7M for LCS and just over $500,000 

for pelagic sharks. 

vii. Fishing Mortality and Bycatch 

Reduction 

Comment 36: Table 3.24 contains an 

error that has been repeated in several 

documents. The Technical 

Memorandum — SEFSC–515 cited as 

Garrison 2003 contains an error in 

addition concerning the total number of 

observed sets (both Total and non-NED) 

for 2001. The correct Total is 584 and 

non-NED is 398, which would change 

the correct percentages to 5.4 percent 

and 3.7 percent, respectively. Also the 

2002 Non-NED percentage should be 3.9 

percent. Lance Garrison confirms these 

inadvertent errors in his published 

errata affixed to the document. 

Response: NMFS has made the 

requested corrections. 

Comment 37: Has NMFS considered 

the fact that the Gulf of Mexico is a 

special region with special needs? 

Could there be regulations on a regional 

basis (i.e., regulations different for the 

Gulf of Mexico from that of other 

regions)? 

Response: It is possible to implement 

regulations on an area-specific basis to 

fit the special needs of a fishery 

whenever possible. NMFS has 

implemented different regulations for 

the pelagic longline fishery on an areaspecific basis in the past. For instance, 

a live bait prohibition for this fishery 

has been implemented in the Gulf of 

Mexico in an attempt to reduce the 

bycatch of billfish. NMFS has also 

implemented regional allocations and 

seasons for LCS and SCS including ones 

for the Gulf of Mexico, and BFT 

regulations in the Gulf of Mexico are 

different than those along the east coast. 

Another example of regionally-specific 

regulations is the requirement to use 

only 18/0 or larger circle hooks in the 

NED for the pelagic longline fishery 

while requiring 16/0 or larger circle 

hooks elsewhere. NMFS will continue 

to evaluate alternative management 

measures in light of the specific needs 

of a fishery when possible. 

Comment 38: NMFS should request 

that the Gulf of Mexico Fishery 

Management Council and the Gulf states 

cooperate with NMFS to minimize shark 

bycatch associated with fisheries under 

their purview (i.e., Gulf of Mexico 

shrimp and menhaden fisheries). 

Response: NMFS agrees that 

cooperation amongst the States, 

Regional Fishery Management Councils, 

and the Agency can help to address 

bycatch issues, particularly in those 

fisheries that cross jurisdictional 

boundaries. NMFS has contacted the 

Gulf and South Atlantic States and 

Regional Fishery Management Councils 

in an attempt to identify fisheries where 

finetooth shark bycatch may be 

occurring. NMFS also consulted with all 

Regional Fishery Management Councils 

and both the Atlantic and Gulf States 

Marine Fisheries Commissions 

regarding the Draft Consolidated HMS 

FMP and its proposed measures. 

Comment 39: NMFS has failed to 

meaningfully reduce longline bycatch 

since 1997. While time/area closures 

give the appearance that something is 

being done, this is not the only answer. 

Response: NMFS disagrees that 

longline bycatch has not been 

meaningfully reduced. NMFS analyzed 

the reported landings and bycatch in the 

pelagic longline fishery from 1997–99 

versus 2001–03 to measure the 

effectiveness of the time/area closures 

implemented in 2000–01. The analyses 

showed that the existing closures have 

been effective at reducing bycatch of 

protected species and non-target HMS 

and have provided positive ecological 

benefits. For example, the overall 

number of reported discards of 

swordfish, bluefin and bigeye tunas, 

pelagic sharks, blue and white marlin, 

sailfish, and spearfish have all declined 

by more than 30 percent. The reported 

discards of blue and white marlin 

declined by about 50 percent and 

sailfish discards declined by almost 75 

percent. The reported number of sea 

turtles caught and released declined by 

almost 28 percent. 

It appears that bluefin tuna discards 

in the MAB and NEC have been reduced 

considerably since the implementation 

of the June closure in 1999. Reported 

discards of BFT prior to implementation 

of the closure ranged from 558 to over 

2,700 per year. Since 1999, the number 

of bluefin tuna reported discarded has 

remained below 500 per year. The 

number of swordfish kept in the MAB 

and NEC has increased since the closure 

was implemented while the number of 

billfish discarded has declined. 

NMFS agrees that time/area closures 

are not the only management tool that 

can be utilized to reduce bycatch. NMFS 

has also implemented circle hook and 

bait requirements for the pelagic 

longline fishery and a live bait 

prohibition for that fishery in the Gulf 

of Mexico as well. These measures are 

intended to reduce the bycatch of nontarget species and protected resources in 

the pelagic longline fishery. 

Comment 40: NMFS should allow 

longline fishermen to sell their bycatch 

for charity. 

Response: Commercial fishermen are 

already allowed to sell their catch for 

whatever purpose unless it is a 

prohibited species or specific 

regulations prohibit its retention such as 

the season is closed, quota has been 

met, the fish is undersized, or the 

animal is a protected resource. 

Comment 41: NMFS received several 

comments regarding the need for 

additional research including: NMFS 

should research live baiting using circle 

hooks as a technique to increase catch 

of YFT and reduce bycatch; NMFS 

should conduct and/or continue 

experiments on non-offset circle hooks, 

circle hooks 20/0 and larger, bait 

options, and post-hooking effects. 

Response: NMFS agrees that 

additional research can be conducted on 

a number of topics, including those in 

this comment and other comments 

throughout this final rule, to evaluate 

their effectiveness in reducing bycatch 

of non-target species and protected 

resources. NMFS intends to continue to 

evaluate research proposals in many of 

these areas. New research is dependent 

on funding availability. 

Comment 42: In our scoping 

comments, we set forth a proposal for 

NMFS to consider regarding bycatch. 

NMFS left that proposal out of the draft 

FMP even though it is required under 

international and domestic laws to 

develop fully and analyze that proposal. 

Response: While every comment is 

considered, NMFS disagrees that all 

comments offered during the scoping 

process need to be developed fully and 

analyzed. The Agency considered a 

broad range of alternatives to address 

bycatch in the Draft FMP, however, not 

all of these were fully developed and 

analyzed for a variety of reasons. There 

may have been more effective 

alternatives considered for further 

analysis or a proposed measure was 

found to not meet the needs or 

objectives of the FMP, and therefore was 

not considered further. 

Comment 43: NMFS received 

comments about the need to implement 

a cap or quota on bycatch. These 

comments include: to reduce bycatch, 

NMFS should implement a hard cap 

system. Such a system would, among 

other things, set limits on fishing 

mortality of marine life, provide 

accountability by dividing limits 

between fishing sectors, set limits that 

would stop fishing for that sector, 

reward clean fishing, prevent a race to 


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fish, and reduce bycatch. Such caps 

should be set for commercially targeted 

species, spawning species, 

recreationally targeted species, 

endangered species, marine mammals, 

and other species, such as sea birds, that 

are needed to promote the health of the 

marine ecosystem; NMFS should 

implement a hard cap on the takes of 

protected species similar to the one 

successfully implemented in the 

Western Pacific. This would remedy the 

historic failure of the pelagic longline 

fleet to maintain up-to-date records of 

turtle bycatch, allow for timely 

corrective action to reinitiate under the 

ESA, and help the fleet stay within take 

levels intended to protect against the 

jeopardy to the species. Such a system 

would require real time observer 

reporting and a ‘‘yellow light’’ system to 

warn fishermen when takes are 

approaching the limit. 

Response: Additional measures 

designed to reduce bycatch could be 

examined in the future, possibly on a 

sector by sector basis as suggested by 

the commenter. However, a hard cap 

system may not be appropriate or 

feasible in every sector due to logistical 

constraints such as placing observers on 

every recreational and commercial 

vessel, limited resources, and other 

management measures that are already 

in place for the fishery such as 

mandatory circle hook use for the PLL 

fishery. There are also international 

concerns related to rebuilding plans and 

the ATCA, fishing effort and mortality 

rates, and bycatch that would need to be 

considered prior to establishing hard 

caps. A hard cap on the number of 

protected species interactions (e.g., sea 

turtles) in all HMS fisheries already 

exists through the incidental take 

statement. Each fishery is operating 

under an incidental take statement that 

once reached can close that fishery and/ 

or result in a re-initiation of 

consultation under Section 7 of the 

ESA. 

Comment 44: NMFS has a study that 

indicates a default standardized bycatch 

reporting methodology (SBRM) must 

include observer coverage of at least 20 

percent (or 50 percent when endangered 

species are at risk). Rather than 

analyzing its needs to meet the 

conservation and management goals of 

the fishery, NMFS claims the study was 

simplistic and failed to account for 

‘‘limited resources.’’ This arbitrary 

failure to analyze alternatives for 

establishing a reporting methodology 

violates NEPA and the MagnusonStevens Act. NEPA requires NMFS to 

undertake an analysis to determine the 

level of observer coverage necessary to 

provide accurate and precise data for 

each conservation and management 

need addressed in the draft FMP. 

Congress and the Magnuson-Stevens Act 

do not give NMFS the ability to ignore 

the reporting methodology based on 

‘‘limited resources.’’ Nevertheless, a 

NEPA analysis could consider them. 

Response: The effectiveness of any 

SBRM depends on its ability to estimate 

the type and quantity of bycatch 

precisely and accurately enough to meet 

the conservation and management needs 

of a fishery. The National Bycatch 

Report contains an in-depth 

examination of the issues of precision 

and accuracy in estimating bycatch and 

how precision relates to sampling and to 

assessments. The precision of an 

estimate is often expressed in terms of 

the coefficient of variation (CV) defined 

as the standard error of the estimator 

divided by the estimate. The lower the 

CV, the more precise the estimate is 

considered to be. A precise estimate is 

not necessarily an accurate estimate. 

The National Working Group on 

Bycatch recommended that at-sea 

sampling designs should be formulated 

to achieve precision goals for the least 

amount of observation effort, while also 

striving to increase accuracy. This can 

be accomplished through random 

sample selection, developing 

appropriate sampling strata and 

sampling allocation procedures, and by 

implementing appropriate tests for bias. 

Sampling programs should be driven by 

the precision and accuracy required by 

managers to address management needs 

for estimating management quantities 

such as allowable catches through a 

stock assessment, for evaluating bycatch 

relative to a management standard such 

as allowable take, and for developing 

mitigation mechanisms. The 

recommended precision goals for 

estimates of bycatch are defined in 

terms of the coefficient of variation (CV) 

of each estimate. For marine mammals 

and other protected species, including 

seabirds and sea turtles, the 

recommended precision goal is a 20–30 

percent CV for estimates of interactions 

for each species/stock taken by a 

fishery. For fishery resources, excluding 

protected species, caught as bycatch in 

a fishery, the recommended precision 

goal is a 20–30 percent CV for estimates 

of total discards (aggregated over all 

species) for the fishery; or if total catch 

cannot be divided into discards and 

retained catch, then the goal is a 20–30 

percent CV for estimates of total catch 

(NMFS, 2004a). The report also states 

that attainment of these goals may not 

be possible or practical in all fisheries 

and should be evaluated on a case-bycase basis. 

Rago et al., (2005) examined potential 

sources of bias in commercial fisheries 

of the Northeast Atlantic by comparing 

measures of performance for vessels 

with and without observers. Bias can 

arise if the vessels with observers 

onboard consistently catch more or less 

than other vessels, if trip durations 

change, or if vessels fish in different 

areas. Average catches (pounds landed) 

for observed and total trips compared 

favorably and the expected differences 

of the stratum specific means and 

standard deviations for both kept weight 

and trip duration was near zero (Rago et 

al., 2005). 

The report cited by this commenter 

suggests that relatively high percentages 

of observer coverage are necessary to 

adequately address potential bias in 

bycatch estimates from observer 

programs. However, the examples cited 

in that report as successful in reducing 

bias through high observer coverage 

levels are fisheries comprised of 

relatively few vessels compared to many 

other fisheries, including the Atlantic 

HMS fishery. Their examples are not 

representative of the issues facing most 

observer programs and fishery 

managers, who must work with limited 

resources to cover large and diverse 

fisheries. The commenter appears to 

suggest that simply increasing observer 

coverage ensures accuracy of the 

estimates. However, bias due to 

unrepresentative sampling may not be 

reduced by increasing sample size 

through increased observer coverage 

due to logistical constraints, such as if 

certain fishermen refuse to take 

observers, or if certain classes of vessels 

cannot accommodate observers. 

Increasing sample size through 

increased observer coverage may only 

result in a larger, but still biased, sample 

due to non-representative sampling. 

Observer programs strive to achieve 

samples that are representative of both 

fishing effort and catches. 

Representative samples are critical not 

only for obtaining accurate (i.e., 

unbiased) estimates of bycatch, but also 

for collecting information about factors 

that may be important for mitigating 

bycatch. Bias may be introduced at 

several levels such as when vessels are 

selected for coverage or when only a 

portion of the haul can be sampled due 

to weather or other concerns. 

NMFS has conducted analyses to 

determine the level of observer coverage 

needed for the pelagic longline, bottom 

longline and shark gillnet fisheries to 

produce estimates for protected resource 

interactions with a CV of 0.3 (30 

percent) or less. The current target 

levels of observer coverage are eight 

percent of total sets for the PLL fishery, 


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3.9 percent of total effort for the BLL 

fishery, and 33.8 percent for the shark 

gillnet fishery outside of the right whale 

calving season (April 1 through 

November 14) and 100 percent during 

right whale calving season (November 

15 through March 31). NMFS will 

continue to provide observer coverage at 

these levels, subject to available 

resources. 

Comment 45: NEPA requires that the 

EIS analyze the cumulative effect of all 

takes on sea turtles, not just the effects 

of takes in the HMS fisheries. While the 

pelagic longline fishery is one of the 

most damaging fisheries to sea turtle 

populations, a true determination of 

environmental impacts of this fishery 

cannot be made without examining the 

effects of all U.S. fisheries cumulatively. 

Response: NMFS agrees that impacts 

to sea turtles and other protected 

resources are not limited to takes in 

HMS fisheries. The environmental 

impacts of the pelagic longline fishery 

and a description of the fishery are 

covered in Chapters 3 and 4 of the Draft 

HMS FMP. All fisheries and nonfisheries impacts on the status of each 

protected resource were already 

analyzed as part of the environmental 

baseline in the BiOp for the PLL fishery. 

Because the final actions within this 

final rule are not outside the scope of 

the BiOp for the PLL fishery, or the 

BiOps for other HMS fisheries, NMFS 

does not consider the actions 

detrimental to sea turtle populations. 

Comment 46: The EIS provides only 

a cursory analysis of the impacts of 

HMS fisheries on marine mammals. The 

current bycatch monitoring 

methodology is not adequate for the 

conservation and management needs of 

marine mammals. Collecting the 

information is necessary to allow NMFS 

to devise specific bycatch reduction 

measures based on the actual behavior 

of marine mammals in HMS fisheries. 

NMFS should require fishermen to 

report in real-time where they place gear 

and where gear is lost, and to mark gear 

with colors to indicate the type and 

location of fishing gear. NMFS must also 

prioritize the granting of scientific 

research permits. 

Response: The MMPA requires 

commercial fishermen to report all 

marine mammal interactions within 48 

hours after the end of a fishing trip. 

Marine mammal interactions have been 

documented in the pelagic longline 

fishery and the shark gillnet fishery. 

Both fisheries are subject to observer 

coverage at levels that produce 

estimates of marine mammal 

interactions with a CV less than 30 

percent. For marine mammals and other 

protected species, including seabirds 

and sea turtles, the recommended 

precision goal in the National Bycatch 

Report is a 20–30 percent CV for 

estimates of interactions for each 

species/stock taken by a fishery. In June 

2005, NMFS convened the Pelagic 

Longline Take Reduction Team to assess 

and reduce the takes of marine 

mammals, specifically pilot whales and 

Risso’s dolphins, by the pelagic longline 

fishery. NMFS will take action based on 

the results of the Pelagic Longline Take 

Reduction Plan, as necessary. 

Comment 47: NMFS must implement 

comparable bycatch and sea turtle safe 

conservation certification program on 

all HMS product imports. 

Response: NMFS appreciates this 

comment. As such a program would be 

most effective as part of an international 

program, NMFS may evaluate the 

efficacy and feasibility of requiring this 

type of certification program as part of 

a future action. 

Comment 48: While NMFS received a 

number of comments on ways to better 

monitor recreational landings including 

logbook data that is tied to renewing 

permits, catch cards, and Vessel Trip 

Reports (VTR), the issue was relegated 

to one paragraph in the ‘‘Issues for 

Future Consideration and Outlook’’

section. The AP wants to move from 

survey methods to census methods and 

that idea is lost in this draft. NMFS 

should work with ACCSP to implement 

a mandatory VTR program that provides 

timely, accurate catch and effort data for 

the for-hire fleets. NMFS should state 

that it supports a comparison of existing 

for-hire VTR catch data with LPS data 

for the same time periods. 

Response: NMFS recognizes the 

desire to improve the collection of 

recreational landings data. At the 

request of NMFS, the National Academy 

of Science (NAS) recently reviewed both 

state and federal marine recreational 

fishery surveys. The review committee’s 

report has been published and the 

Agency is evaluating the 

recommendations. 

Comment 49: The Agency has a lack 

of attention to recreational fisheries data 

collection resulting in negative impacts 

to the recreational fishery. 

Response: NMFS spends considerable 

time and money collecting data from 

recreational fisheries, including 

recreational fisheries for HMS. NMFS 

staff also spend considerable time and 

effort monitoring data collection and 

reviewing recreational fishery data for 

HMS fisheries. The Agency is evaluating 

the recommendations of the recent NAS 

review of marine fishery surveys to 

identify where improvements may be 

made. 

Comment 50: Maryland catch card 

data should be used to determine total 

BFT catch instead of using LPS catch 

data for Maryland. 

Response: NMFS has reviewed the 

Maryland BFT catch card data from 

2002–2005 to evaluate its utility for 

management purposes. Although 

current reporting appears to be high, 

there is a measured level of noncompliance with the program. This noncompliance was determined by 

comparing directly observed BFT in the 

intercept portion of the LPS with catch 

card records. Non-compliance with the 

Maryland catch card program is 

currently estimated to be 15 percent. 

NMFS will continue to work with the 

Maryland DNR to improve compliance 

with the catch card program so that 

NMFS can integrate the data it generates 

into the monitoring and management 

program for BFT. 

viii. Permitting, Reporting, and 

Monitoring 

Comment 51: NMFS received a 

number of comments regarding HMS 

permitting in general. These comments 

consisted of: NMFS should provided 

updated HMS regulations to permit 

holders when they are issued a permit; 

permits should be renewed on a 

calendar year basis so fishing groups 

can notify their memberships and 

thereby improve renewal compliance; 

and, NMFS should implement a salt 

water fishing license for all fishermen in 

order to develop a database for data 

collection and observer coverage. 

Response: NMFS agrees that the idea 

of providing copies of relevant 

regulations when an HMS permit is 

applied for and sent has merit. 

However, due to the ever changing 

dynamics of HMS fisheries, the rules 

and regulations may change throughout 

the season. Providing permit holders 

with a snapshot of the rules and 

regulations that exist early in the season 

may lead to a false sense of security that 

these regulations would remain 

consistent for the entire season. In an 

attempt to strike a balance, NMFS 

includes information on the Atlantic 

tunas and HMS permits that allow the 

permit holder to access the most recent 

information. For instance, NMFS 

includes a web address and toll-free 

telephone number where permit holders 

can locate the most up to date 

regulations. For those permits that 

authorize the user to participate in 

recreational HMS fisheries, NMFS has 

included the appropriate telephone 

numbers to report their catch. NMFS is 

adjusting the annual management 

timeframe of HMS fisheries to a 

calendar year, versus a wrap around 


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fishing year, i.e., June through May of 

the following year. NMFS will realign 

the HMS permitting to coincide with the 

calendar year. For consistency purposes 

the shark and swordfish commercial 

permits, both vessel and dealers, will 

still be issued according to birth month, 

under the business rules of the 

Southeast Permitting Office. 

Comment 52: NMFS received a 

comment stating that NMFS should 

redesign vessel permits based on fishing 

methods and geographic area. NMFS 

should combine vessel permitting for 

coastal pelagics and HMS for the charter 

boats, headboats, and commercial 

handgear vessels. 

Response: Since the inception of the 

1999 FMP, constituents, advisory panel 

members, NMFS staff, and others have 

identified a number of issues pertaining 

to the permitting program. These have 

included, but are not limited to, further 

rationalizing some segments of the HMS 

fisheries, streamlining or simplifying 

the permitting process, restructuring the 

permit process to a gear-based permit 

system from the current species-based 

permit system, and reopening some 

segments of the limited access system to 

allow for the issuance of additional 

permits. Addressing these issues in the 

future may be important to the 

successful long-term stewardship of 

HMS fisheries, and therefore NMFS may 

consider restructuring these elements in 

future rulemakings. 

Comment 53: A mandatory HMS 

tournament permit (alternative E9) 

would help to provide an exact count of 

the number of marlin landed in 

tournaments. 

Response: In the Draft Consolidated 

HMS FMP, a mandatory HMS 

tournament permit (alternative E9) was 

considered, but not further analyzed, 

because improvements to tournament 

registration, data collection, and 

enforceability may be achieved with 

considerably less burden to the public 

and the government by issuing a 

confirmation number, rather than a 

permit, to tournament operators that 

have registered their tournaments with 

NMFS. Because HMS tournaments 

frequently change operators, names, and 

dates, a tournament permit would be 

very burdensome to administer and 

enforce. Therefore, the regulations are 

being clarified to specify that HMS 

tournament registration is not 

considered complete unless the operator 

has received a confirmation number 

from the HMS Management Division of 

NMFS. Requiring a tournament 

confirmation number, issued by the 

HMS Management Division, will 

achieve the same objective (i.e., 

increased compliance) as a tournament 

permit. Since all tournaments awarding 

points or prizes for HMS are currently 

required to be registered with NMFS, 

and because all billfish tournaments are 

currently selected for reporting, the 

Agency is already obtaining an exact 

count of the number of marlin landed in 

registered tournaments. 

Comment 54: NMFS received general 

comments regarding the recreational 

reporting requirements including: Noncompliance with recreational swordfish 

and billfish reporting occurs because it 

takes too much time to report fish to 

NMFS using the telephone. NMFS 

needs to simplify the telephone 

reporting system and increase Customer 

Service; to increase compliance with 

recreational reporting requirements, 

NMFS should provide a bumper sticker, 

or token reward, to those fishermen that 

have reported their catch. This 

technique has been successful in other 

fisheries. 

Response: The recreational billfish 

and swordfish telephone reporting 

system has recently been modified to 

provide quicker and more convenient 

access. HMS Angling category permit 

holders (or their designees) must report 

landings of these species within 24 

hours of landing by calling 800–894–

5528, and then pushing the numbers 

‘‘21’’ to provide information regarding 

the catch. A representative from NMFS 

will later contact the permit holder (or 

designee) to verify the landing and 

provide a confirmation number. The 

initial telephone call should only take a 

few minutes. Since the system has been 

modified to provide quicker access, the 

number of first-time callers has 

increased. Additionally, NMFS is 

working on implementing an Internet 

reporting system for these species. The 

Agency appreciates suggestions to 

increase compliance with the 

mandatory recreational reporting 

requirement and will consider these in 

the future, if necessary. 

Comment 55: Until NMFS seriously 

invests in comparable permitting, 

reporting, monitoring, and enforcement 

across all HMS fisheries, commercial 

and recreational, it will not be able to 

appropriately manage Atlantic HMS 

fisheries. Currently, NMFS has adequate 

data for only a couple of commercial 

fisheries. 

Response: NMFS realizes the 

importance of permitting, reporting, 

monitoring, and enforcement in 

maintaining viable management of 

Atlantic HMS. There are several 

measures included in this rulemaking 

that address these issues. Quality stock 

assessments, accurate quota monitoring, 

fishing effort control, and complying 

with current HMS regulations are 

paramount to the HMS management 

program and the Agency agrees that 

these programs are worth serious 

investments of personnel and financial 

resources. The Agency currently 

maintains a comprehensive permitting 

system for both commercial and 

recreational fisheries, including both 

limited and open access regimes. 

Reporting is required of all shark and 

swordfish commercial fisheries 

participants, and some commercial tuna 

fishery participants, including costs and 

earnings reports from selected 

commercial fisheries participants. 

Landings are monitored consistently to 

ensure that landings are within their 

allotted quotas. Recreational reporting is 

currently required for all nontournament landings of bluefin tuna, 

swordfish, and billfish. Tournaments 

are also required to register and report 

any landings of HMS. NMFS is 

dependant on several entities for 

dockside and at-sea enforcement, 

including NMFS Office of Law 

Enforcement, the United States Coast 

Guard, and individual states that 

maintain a Joint Enforcement 

Agreement with NMFS. NMFS is 

involved in activities to enhance, 

update, and/or modify the permitting, 

reporting, monitoring, and enforcement 

systems currently in place. 

Comment 56: NMFS received 

comments pertaining to the longline 

sector of the HMS fishery. The 

comments consisted of: NMFS must 

monitor and account for all sources of 

fishing mortality, not just mortality from 

the PLL fleet; and, is the VMS 

requirement meeting its intended 

purpose and who needs to possess one?; 

and, NMFS should put 100 percent 

observer coverage on commercial 

vessels around Puerto Rico for a few 

years due to gear conflicts between PLL 

vessels and other commercial vessels. 

These conflicts are attributed to PLL 

vessels operating closer to shore and 

thus interfering with traditional trolling 

practices. 

Response: NMFS accounts for 

recreational landings in stock 

assessments and uses the best available 

science regarding post-release mortality 

of billfish in the recreational sector to 

consider impacts on billfish and other 

HMS taken in fisheries other than 

commercial longlining. VMS is required 

on all vessels fishing for HMS with 

pelagic longline gear onboard, on all 

directed shark bottom longline vessels 

between 33° North and 36°30′ North 

from January through July, and on all 

gillnet vessels with a directed shark 

permit during the Right Whale Calving 

Season from November 15 to March 31. 

VMS is meeting its intended purpose by 


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assisting in the monitoring and 

enforcement of closed areas. It is one of 

several tools including logbooks, 

observer programs, gear requirements, 

quotas, and limited access permits that 

NMFS uses to manage HMS fisheries. 

Resources for observer programs are 

limited, and having 100 percent 

observer coverage on commercial 

vessels around Puerto Rico would likely 

not be possible due to funding 

constraints. Currently, vessels are 

randomly selected for observer coverage 

throughout the fishery based on having 

a permit and reporting in logbooks. 

Furthermore, observers are not trained 

as enforcement personnel, and would 

not be in a position to reduce conflicts 

between different gear sectors in and 

around Puerto Rico. These types of 

issues are more appropriately handled 

by enforcement personnel. 

Comment 57: NMFS received a 

number of comments regarding the 

deployment of observers in HMS 

fisheries. These comments consisted of: 

Observer coverage on the pelagic 

longline fishery must be significantly 

increased from current levels, especially 

in areas with high levels of sea turtle 

take (e.g., the Northeast Distant and the 

Gulf of Mexico). More coverage is 

essential to provide data on the 

effectiveness of the gear and bait 

modifications and the rate and location 

of sea turtle capture. The 2004 BiOp 

required 8 percent coverage but this 

increase was established by ICCAT for 

the purpose of assessing the bycatch of 

tuna species and will not be effective at 

assessing the bycatch of rarely 

encountered species such as sea turtles; 

proper measurement for observer 

coverage levels should be based on the 

number of observed hooks out of the 

number of hooks reported to have been 

fished, rather than number of observed 

sets; a voluntary HMS CHB observer 

program should be tested; and, NMFS 

should implement electronic reporting 

and mandatory observer coverage for all 

HMS fisheries. 

Response: NMFS increased observer 

coverage in the pelagic longline fishery 

to 8 percent in 2004 in order to 

effectively monitor bycatch after 

implementation of new gear 

requirements. The pelagic longline 

observer program coverage level was 

raised to 8 percent not just to meet 

ICCAT targets, but also to improve the 

precision of catch and bycatch estimates 

specified in NMFS’ guidelines for 

fisheries observer coverage levels. The 

number of sets is the standard effort 

used by other NMFS-managed fisheries 

in calculating the level of observer 

coverage required. Additionally, the set 

location is more easily tracked to the 

statistical reporting areas in the Atlantic 

than logbook or fishing effort based on 

the number of hooks would be. NMFS 

agrees that voluntary observer coverage 

would be helpful in a number of 

different fisheries, as would electronic 

reporting if it were technologically 

feasible and not cost prohibitive. NMFS 

will continue to explore these options in 

the future. 

Comment 58: An operator’s permit 

should be required for all HMS 

fisheries. 

Response: The HMS Management 

Division is aware of several other 

federally managed fisheries that have 

imposed this requirement (e.g., the 

commercial and charter/headboat 

Atlantic dolphin and wahoo fisheries 

and the commercial South Atlantic rock 

shrimp fishery), however, NMFS has not 

proposed similar measures for HMS at 

this time. NMFS is looking at the 

permitting requirements for all HMS 

fisheries and may be consider this 

requirement in the future, as necessary 

and appropriate. 

ix. Enforcement 

Comment 59: NMFS received several 

comments related to the lack of 

enforcement of HMS regulations, 

including: the Agency needs to enforce 

the HMS regulations for all people 

fishing for HMS, there is virtually no 

fisheries enforcement in the U.S. Virgin 

Islands, lack of enforcement is a big 

problem in Puerto Rico, law 

enforcement should increase effort 

around places where marlin are sold 

illegally and there are many issues with 

billfish landings in Puerto Rico and 

there should be continued focused 

efforts to better understand how many 

billfish are being landed in the 

Caribbean. 

Response: NMFS Office for Law 

Enforcement (NMFS OLE) has Special 

Agents stationed in Puerto Rico to 

enforce all federal fisheries laws, 

including those involving HMS. In 

addition, the United States Coast Guard 

(USCG) conducts fisheries enforcement 

in all federal waters, including the 

waters off the coast of Puerto Rico. With 

regard to the specific concerns that the 

commenter raised about billfish, NMFS 

has very little hard data on the extent of 

illegal sales of billfish in Puerto Rico, 

and as such cannot verify the veracity 

of the commenter’s claims or assess 

their impact. NMFS has received a 

number of anecdotal reports of sales of 

Atlantic marlin in Puerto Rico. The 

number of these anecdotal reports 

suggests that a sizable number of 

Atlantic marlin may be illegally sold 

and implies that more than just those 

fish that come to the boat dead are 

illegally entered into commerce. NMFS 

acknowledges that there is some 

uncertainty associated with marlin 

landings statistics from the U.S. 

Caribbean, and the Agency is working to 

improve these statistics by increasing 

enforcement of existing permitting and 

reporting requirements, including those 

for tournaments. 

Comment 60: One commenter was 

confused by the 3 and 12 mile limits, 

other confusing rules, and whom they 

should call to complain and ask for 

patrols. 

Response: Most states on the Atlantic 

Ocean, with the exception of Texas and 

the west coast of Florida, have a 3 mile 

limit which delineates their states’

waters. Individual states (or 

commonwealths) have jurisdiction over 

fisheries management and enforcement 

in their waters. The west (Gulf of 

Mexico) coast of Florida and Texas have 

jurisdiction out to nine miles. Puerto 

Rico, a U.S. Territory, has jurisdiction 

out to nine miles. The 2005 Guide for 

Complying With the Regulations for 

Atlantic Tunas, Swordfish, Sharks, and 

Billfish provides detailed information 

and responses to frequently asked 

questions concerning HMS regulations. 

The contact numbers for NMFS Office of 

Law Enforcement are also provided in 

this document which can be 

downloaded from the HMS website or 

by contacting NMFS. 

Comment 61: NMFS must do a better 

job in protecting and preserving our 

marine resources in general. Possible 

strategies that NMFS should consider 

include: discouraging overfishing by 

increasing fees, implementing stricter 

regulations, and improving 

enforcement. 

Response: NMFS has implemented 

numerous regulations that are intended 

to prevent overfishing, rebuild 

overfished stocks, reduce bycatch, and 

limit fishing capacity in efforts to ensure 

that viable stocks of HMS are enjoyed by 

future generations of stakeholders. 

Enforcement of HMS regulations is one 

of several priorities shared by the NMFS 

OLE, USCG, and states that have a Joint 

Enforcement Agreement with the 

Federal government. NMFS OLE, USCG, 

and individual states are constantly 

striving to improve enforcement of not 

just HMS regulations, but regulations 

pertaining to all fisheries. This 

rulemaking includes regulations aimed 

at rebuilding overfished stocks of 

billfish, preventing overfishing of 

finetooth sharks, reducing post release 

mortality of sea turtles and other 

protected resources, simplifying 

management of bluefin tuna, 

authorizing additional fishing gears for 

HMS, and improving identification of 


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sharks by dealers, among other 

measures. Increasing fees was not 

analyzed in this rulemaking, however, 

NMFS has implemented a suite of other 

regulations, in this rulemaking and 

otherwise, that prevent or discourage 

overfishing. 

Comment 62: Possession of HMS 

angling permits in South Florida is still 

an issue. Many anglers do not possess 

the appropriate permit. Could the Sun 

Sentinel or Miami Herald be involved in 

reporting cases where anglers are caught 

for fishing without the proper permits? 

Response: NMFS agrees that it is 

important for all participants in HMS 

fisheries to possess the appropriate 

permit and is interested in exploring 

options to improve outreach in all areas 

of the Atlantic with the objective of 

increased compliance with HMS 

permitting requirements. Advertising 

the requirements in newspapers or other 

media may be a viable option to 

improve compliance. However, 

individuals have the primary 

responsibility for knowing the laws 

surrounding their participation in all 

activities, including the pursuit of HMS. 

Many freshwater, estuarine, and/or 

marine fisheries require compliance 

with regulations that include, but are 

not limited to: permitting, size and bag 

limits, and seasons. HMS fisheries are 

no exception. 

Comment 63: NMFS OLE needs to 

prioritize which violations are the most 

significant and pursue these cases first. 

Response: NMFS OLE, in conjunction 

with the NMFS Regional Administrator, 

sets regional enforcement priorities. 

These priorities are based on the threat 

that a certain violation or category of 

violations presents to marine resources, 

identified trends in noncompliance, as 

well as other factors. In addition, the 

Magnuson-Stevens Act, as well as the 

Agency’s own civil monetary penalty 

schedule, provides that the 

egregiousness of the offense and the 

violator’s history of prior violations is 

considered, along with other factors, in 

determining the appropriate civil 

monetary penalty. 

x. ICCAT 

Comment 64: NMFS received a 

number of comments pertaining to 

ICCAT, the 250 recreationally caught 

marlin landing limit, U.S. participation 

at ICCAT, and U.S. negotiating positions 

at ICCAT, including: ICCAT should look 

at a longer billfish time series so they 

can see the increase in biomass 

overtime; the bargaining power of the 

U.S. may be reduced at ICCAT if the full 

quota is not being utilized; the U.S. 

impact on Atlantic blue and white 

marlin is probably considerably less 

than 5 percent. The White Marlin Status 

Review Team noted that if the United 

States were to stop all commercial and 

recreational fishing mortality for white 

marlin, the impact on the stock 

trajectory would be minimal. The U.S. 

cannot have a meaningful impact acting 

alone. ICCAT does not give credit for 

unilateral conservation measures. If the 

U.S. implements the selected 

alternatives measures now, we will 

greatly reduce our ability to negotiate 

with other nations to further reduce 

their impacts on these overfished stocks; 

we do not favor additional domestic 

regulations on catches of marlin until 

after further development of a 

rebuilding plan by ICCAT; we would be 

better off if NMFS waited until the other 

countries reduced their commercial 

landing by 50 percent before we agree 

to the 250. We would like to see 

verification of the 50 percent and 66 

percent landing reductions that other 

countries have agreed to; United States 

ICCAT representatives should demand 

the unjustified 250 marlin limit be 

remanded. Particularly, when across the 

ocean, foreign longliners harvest these 

species for sale, with no thought of 

conservation; if NMFS wants angler 

support of recreational limits, they need 

to prove to recreational anglers that the 

U.S. will take a tougher stand at ICCAT; 

ICCAT may not be enough to deal with 

global conservation concerns relating to 

billfish; more pressure needs to be 

applied on countries that are not 

complying with ICCAT 

recommendations; the U.S. should 

reconsider how we participate in the 

ICCAT process due to its effectiveness 

and the inability to get other member 

nations to comply with 

recommendations; and, NMFS must 

strengthen its ability to establish 

responsible fishing practices in other 

countries and protect this global 

resource. 

Response: Contrary to the assertion 

that an examination of data over a 

longer time series would reveal an 

increase in billfish biomass over time, 

an examination of Atlantic billfish 

biomass, catch, CPUE, and fishing 

mortality rate data back to the late 1950s 

shows an even more extreme decline in 

biomass than an examination of more 

recent time series. To use Atlantic blue 

marlin as an example, biomass of 

Atlantic blue marlin was an estimated 

200 percent of MSY in the late 1950s 

and declined to just 40 percent of MSY 

by 2000. CPUE during the same period 

fell by more than 80 percent and total 

Atlantic catches of blue marlin fell from 

approximately 9,000 mt to just over 

2,000 mt. These dramatic declines were 

accompanied by similarly large 

increases in the fishing mortality rate, 

which rose from less than 0.3 to 

approximately 4.0. 

Based on SCRS data, catches of U.S. 

flagged vessels represent 4.5 percent of 

catches reported to ICCAT. U.S. action 

alone is not sufficient to fully recover 

stocks of Atlantic billfish, and 

reductions in catches, landings, and 

post-release mortalities from the pelagic 

longline and recreational fisheries, at 

both the international and domestic 

levels, are essential to the recovery of 

the Atlantic billfish. Appropriate 

domestic management measures, 

including implementation of circle hook 

requirements and ICCAT 

recommendations, as contained in this 

final rule, among others, can and should 

be implemented at this time. 

The 250 marlin landing limit was 

contained in an ICCAT recommendation 

(00–13) championed by the U.S., 

supported by the U.S. recreational, 

commercial, and government ICCAT 

commissioners, and adopted by ICCAT. 

Recommendation 00–13 established a 

number of additional stringent 

conservation measures on other nations 

to improve the stock status of Atlantic 

marlin, including mandatory reductions 

in landings of blue and white marlin by 

50 percent and 67 percent, respectively, 

among others. For the period 2001 

through 2004, the U.S. has averaged 189 

recreationally landed marlins, or 

approximately 75 percent of the landing 

limit each year. In two of those four 

years, the U.S. was more than 100 

marlin, or the equivalent of more than 

40 percent, below the U.S. landing limit, 

and U.S. fishermen are free to practice 

catch and release fishing, which is the 

dominant practice in the fishery by 

choice. The U.S. has championed, and 

will continue to champion, billfish 

conservation internationally. 

Comment 65: The biggest threat to 

Atlantic billfish is illegal, unregulated, 

and unreported (IUU) fishing activities 

by foreign longline vessels. ICCAT 

nations must agree to eliminate these 

activities. No further restrictions should 

be placed upon U.S. recreational billfish 

fishermen until the problems associated 

with IUU fishing are addressed, and a 

further reduction in bycatch by 

legitimate longline vessels is achieved. 

Response: IUU fishing represents a 

threat to the health of Atlantic billfish 

populations, and as such, the U.S. 

continues to work through ICCAT to 

address this issue as rapidly and 

efficiently as possible. Reductions in 

bycatch and bycatch mortality from the 

pelagic longline and recreational 

fisheries, at both the international and 

domestic levels, are essential to the 


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recovery of the Atlantic billfish. Further, 

there are appropriate domestic 

management measures, including 

implementation of circle hook 

requirements and ICCAT 

recommendations, as per the selected 

alternatives in this final rule, among 

others, that can and should be 

implemented while concurrently 

working to end IUU fishing at the 

international level. 

Comment 66: To reduce billfish 

mortality, commenters suggested 

consideration or adoption of a number 

of international positions and trade 

restrictive actions by the U.S. including: 

imposition of trade penalties and tariffs 

on other countries that do not adhere to 

ICCAT billfish recommendations; 

initiating action at ICCAT to stop 

longlining worldwide; prohibition of all 

longlining in the U.S. immediately; and, 

prohibiting the importation of any fish 

from other countries whose vessels 

deploy longlines, do not adhere to 

ICCAT quotas, and do not require circle 

hooks on longlines. 

Response: NMFS has imposed import 

restrictions on swordfish below the 

ICCAT minimum size, and may 

consider imposing future trade 

restrictions on any ICCAT species, in 

accordance with adopted ICCAT 

recommendations to impose trade 

restrictions. Multilateral trade 

restrictions, such as ICCAT 

recommendations, are an effective tool 

for addressing nations whose vessels 

fish in a manner that undermines the 

effectiveness of ICCAT conservation and 

management measures. Pelagic longline 

gear is the predominant gear type for 

harvesting highly migratory species and, 

with application of appropriate 

management measures, can provide for 

the sustainable harvest of fisheries 

resources in many instances. As 

described in the response to comments 

related to alternative B7, NMFS is not 

convinced that an international or 

domestic prohibition on pelagic 

longline fishing is necessary at this 

time. 

Comment 67: NMFS should not 

implement any additional management 

measures on billfish until after the 

ICCAT meeting following the next 

assessments of blue and white marlin; I 

support alternative E1 (no action) 

because I disagree that we need to put 

more regulations on US fishermen. Our 

State Department needs to be listening 

to the U.S., but they do not care that 

they are putting U.S. fishermen out of 

business. What the U.S. cares about is 

leading by example without 

compliance. The U.S. still does not take 

international compliance at ICCAT 

seriously. The U.S. should say that it 

would not do anything to domestic 

fishermen unless we see better 

international compliance through 

ICCAT. Why is NMFS in such a hurry 

to put more regulations on U.S. 

fishermen? 

Response: Reductions in bycatch and 

bycatch mortality from the pelagic 

longline and recreational fisheries, at 

both the international and domestic 

levels, are essential to the recovery of 

the Atlantic billfish. There are 

appropriate domestic management 

measures, including implementation of 

circle hook requirements and ICCAT 

recommendations, as contained in this 

final rule, among others, that can and 

should be implemented while 

concurrently working with the 

international community to improve 

management and compliance with 

existing ICCAT recommendations. The 

U.S. takes compliance issues at ICCAT 

very seriously and has led efforts at 

ICCAT to improve compliance at every 

available opportunity. The U.S. has 

been the driving force behind most 

measures at ICCAT that have resulted in 

improved compliance with management 

recommendations and data collection 

requirements. 

Changes from the Proposed Rule 

(August 19, 2005; 70 FR 48804) 

In addition to the correct of minor 

edits throughout, NMFS has made 

several changes to the proposed rule for 

management measures related to the 

workshops, the directed billfish fishery, 

the BFT fishery, authorized fishing 

gears, and regulatory housekeeping 

issues. These changes are outlined 

below. 

1. In § 635.2, the definition of 

‘‘Atlantic HMS identification workshop 

certificate’’ was added to the regulatory 

text in the proposed rule. The final rule 

changes the certificate name to 

‘‘Atlantic shark identification workshop 

certificate’’ to better reflect the 

curriculum for these workshops. The 

name of the protected species workshop 

certificate was also modified to 

protected species safe handling, release, 

and identification workshop certificate 

in order to more accurately reflect the 

workshop objectives. 

2. At § 635.4(l)(1), the final rule was 

modified to include language regarding 

the requirement to obtain the 

appropriate workshop certificate before 

transferring permits from one entity to 

another. The change was made because 

the applicant must submit proof of 

workshop certification with the 

application for a shark or swordfish 

limited access permit. This modification 

will ensure that the owner is familiar 

with the proper safe handling, release, 

and identification techniques upon 

entering into and prior to actively 

participating the fishery. 

3. In § 635.8(a)(1), the January 1, 2007, 

deadline for owners and operators of 

vessels that fish with pelagic and 

bottom longline and gillnet gear was 

changed to require the owners and 

operators of such vessels to possess a 

workshop certificate prior to renewing 

their commercial shark or swordfish 

Federal limited access permits in 2007. 

The rolling deadline distributes 

workshop attendance throughout the 

year, facilitating the implementation 

and administration of these workshops. 

With attendance likely to be more 

evenly distributed, owners and 

operators are expected to get more 

hands on practice with the tools and 

techniques for safe handling and release 

of protected species. The delayed 

deadline gives participants the 

opportunity to attend the workshop 

most convenient for them. 

4. The final rule was modified to 

allow NMFS to issue a certificate to any 

person who has completed the 

workshop. The reference to permitted 

entity in § 635.8(a)(2) and permitted 

entity and proxy in § 635.8(b)(2) were 

removed. Removing the term 

‘‘permitted’’ allows individuals, who are 

not permitted to participate in any of 

the HMS fisheries, to receive the 

workshop certification (i.e., law 

enforcement, port agents, anglers, etc.). 

Some permit holders are corporations or 

companies; therefore the term ‘‘person’’

refers to individuals as well as 

corporations or companies. Section 3 of 

the Magnuson-Stevens Act defines a 

‘‘person’’ as: ‘‘any individual (whether 

or not a citizen or national of the United 

States), any corporation, partnership, 

association, or other entity (whether or 

not organized or existing under the laws 

of any State), and any Federal, State, 

local, or foreign government or any 

entity of any such government.’’

5. In § 635.8(b)(1), the deadline for 

shark dealers to obtain an Atlantic shark 

identification workshop certificate 

changed from January 1, 2007, to 

December 31, 2007, to provide NMFS 

with more time to develop the 

workshop curriculum and materials, as 

well as certify all of the shark dealers or 

their proxies. The delayed deadline 

gives participants the opportunity to 

attend the workshop most convenient 

for them. 

6. The final rule clarifies that if a 

shark dealer sends a proxy rather than 

personally attending an Atlantic shark 

identification workshop, a workshop 

certificate for each proxy representing 

each place of business listed under the 

shark dealer permit must be submitted 


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with the shark dealer permit renewal 

application pursuant to § 635.8(b)(5) 

and (c)(4). Copies of each proxy’s 

workshop certificate is proof that an 

individual from each place of business, 

authorized to receive, purchase, trade, 

or barter for Atlantic shark under the 

dealer’s permit, has attended an Atlantic 

shark identification workshop and is 

certified in the techniques for 

identifying sharks to the species level in 

whole and log form. 

7. In § 635.8(c)(1), NMFS requires 

workshop certificates to be renewed 

three years from the expiration date 

printed on the certificate, rather than 

prior to the date of issuance as 

proposed. The certificate will be used as 

the individual’s proof of attending a 

workshop and obtaining certification; 

therefore the expiration date printed on 

the certificate will facilitate monitoring 

and compliance as the deadline for 

permit renewal will coincide with the 

workshop certification renewal. 

Individuals, who are grandfathered into 

the workshop requirements, will also be 

held to the same three year renewal 

requirement as those attending a 

workshop for the first time in 2007. 

8. The final rule at § 635.8(c)(7) 

includes a new requirement for anyone 

required to attend the protected species 

safe handling, release, and identification 

workshop or the Atlantic shark 

identification workshop. The 

requirement calls for mandatory 

workshop attendees to show a copy of 

their HMS permit as well as proof of 

identification. This additional 

requirement ensures that the permit 

holder and the individual attending the 

workshop are the same person. In the 

case where the permit holder is a 

company, corporation, partnership, or 

some other type of entity, the individual 

attending on behalf of the permit holder 

must show proof that the permit holder 

acknowledges the individual as their 

agent, and they must show a copy of the 

HMS permit. For proxies attending on 

behalf of a shark dealer permit holder, 

the proxy must have documentation 

from the dealer acknowledging that the 

proxy is attending on behalf of the 

Atlantic shark dealer permit holder. 

9. In the final rule, at § § 635.5(c)(2); 

635.20(d)(2) and (d)(4); 635.21(e)(i); 

635.22(b); 635.30(b); and, 635.71(c)(9) 

text prohibiting the take, retention, and 

possession of Atlantic white marlin 

from January 1, 2007, through December 

31, 2011, inclusive, was deleted. 

Elimination of this text reflects the 

Agency’s decision not to adopt this 

alternative, at this time, based on public 

comment in opposition to the proposal, 

limited ecological gains relative to 

potential economic costs, the upcoming 

stock assessments for Atlantic white 

marlin, and upcoming international 

negotiations on the current ICCAT 

rebuilding plan. 

10. In the final rule at § 635.20(d)(4) 

and § 635.27(d)(3), the minimum delay 

in effective date for in-season minimum 

size increases and/or an in-season shift 

to catch and release only fishing for 

Atlantic blue and white marlin was 

modified from 5 days to 14 calendardays based on public comment asking 

for additional time and reconsideration 

of the estimated time necessary to 

collect and analyze landings 

information and project the date at 

which regulatory action may become 

necessary. 

11. In the final rule, an effective date 

of January 1, 2007, was added to 

§ 635.21(e)(2)(iii) to clarify when billfish 

tournament anglers would be subject to 

circle hook requirements. 

12. Text was added to § 635.21 

(e)(2)(iii) and § 635.71 (c)(7) to clarify 

which tournament anglers would be 

subject to circle hook requirements. 

This change was made to better inform 

the public and facilitate enforcement. 

13. In the final rule at § 635.27(d)(1), 

reasons and mechanisms for potential 

adjustment of the annual U.S. Atlantic 

marlin landings limit were identified to 

provide the public a clearer 

understanding of circumstances and 

processes under and by which the 

annual U.S. marlin landings limit may 

be altered. 

14. In the final rule § 635.27(d)(1) and 

(2) were amended to clarify that NMFS 

will not produce or publish annual 

marlin landings limit specifications at 

the start of each season. The final rule 

clarifies that NMFS will only produce 

and publish annual marlin landing limit 

specifications when carryover of 

underharvest or overharvest, or a 

subsequent ICCAT recommendation, 

alters the U.S. Atlantic marlin landings 

limit from 250 fish. This change was 

made to streamline the management 

process, similar to the process used for 

other HMS. 

15. In the final rule at § 635.27(d)(2), 

variables identified as those which 

would be considered when determining 

potential adjustments to the annual 

landing limit of 250 recreationally 

caught Atlantic marlin were modified. 

The proposed rule mistakenly contained 

variables appropriate for consideration 

of in-season adjustments to marlin 

minimum sizes and/or a shift to catch 

and release only fishing for Atlantic 

marlin, but not for adjustment of the 

annual 250 Atlantic marlin landing 

limit. The inappropriate variables were 

removed. 

16. In the final rule, text at 

§ 635.27(d)(3) was added to clarify the 

variables that will be considered when 

the Agency is making a determination of 

whether or not to implement an inseason shift to catch and release only 

fishing for Atlantic blue and white 

marlin. 

17. In the final rule, text at 

§ 635.71(c)(8) was amended to clearly 

articulate when it is illegal to take, 

retain, or possess Atlantic blue or white 

marlin. 

18. The proposed alternative in the 

Draft Consolidated HMS FMP regarding 

the retention of the North/South 

Angling category dividing line was 

changed in the Final Consolidated HMS 

FMP. As a result, the regulatory text 

contained in § 635.27(a)(2) has been 

modified to maintain the North/South 

Angling category dividing line located 

at 39°18′ N. latitude (Great Egg Inlet, 

NJ). This dividing line is intended to 

provide a more equitable geographic 

and temporal distribution of 

recreational fishing opportunities by 

separating each BFT size-class subquota 

into two geographical regions, the 

northern area (allocated 47.2 percent of 

the size-class subquotas) and the 

southern area (52.8 percent of the sizeclass subquotas). This management tool 

was originally intended to ensure 

reasonable recreational fishing 

opportunities in all geographic areas 

without risking overharvest of the 

Angling category quota. While this line 

allows NMFS to allocate different 

retention limits based on the migratory 

pattern of BFT, the effectiveness of this 

management tool depends on NMFS 

gathering recreational BFT landings 

information in a timely fashion to 

support real-time management 

decisions. 

19. A typographical error in 

§ 635.27(a)(7)(ii) is also corrected in this 

final action. The total amount of school 

BFT that is held in reserve for inseason 

or annual adjustments and fisheryindependent research is equal to 18.5 

percent of the total school BFT quota for 

the Angling category. In the proposed 

rule, the metric ton equivalent to this 

calculation was published as 36.6 mt, 

this was in error and is corrected to the 

actual amount of 22.0 mt. 

20. In the List of Fisheries (LOF) at 

§ 600.725(v), under IX, Secretary of 

Commerce (H), has been modified to 

combine the Atlantic Tunas, Swordfish, 

and Shark FMP with the Atlantic 

Billfish FMP, consistent with the 

consolidation of those FMPs in this final 

rule. The LOF was also modified to 

limit the use of speargun fishing gear to 

BAYS tunas only. The modification to 

exclude BFT from the allowed list of 


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target species for this new gear type was 

made because of the declining 

performance of the existing BFT fishery, 

recent quota limited situations within 

the recreational angling sector, and 

ongoing concerns over the status of the 

stock. The LOF was further modified to 

clarify, consistent with existing 

regulations at § 635.21(e)(4)(iv), the 

authorized gears for the recreational 

swordfish fishery. Finally, in the final 

rule, green-stick was removed from the 

tuna handgear fishery in the LOF, as 

further described in item 25 below. 

21. In § 635.21(e)(1)(i) and (ii), the 

authorized gear section for Atlantic 

tunas Angling and Charter/Headboat 

categories, the use of speargun fishing 

gear for Atlantic tunas has been 

restricted to the recreational BAYS tuna 

fishery only. The proposed rule was 

modified to exclude BFT from the list of 

allowable tuna species due to declining 

performance of the existing BFT fishery, 

recent quota limited situations within 

the recreational angling sector, and 

ongoing concerns over the status of the 

stock. 

22. In § 635.21(f), the gear operation 

and deployment restrictions section for 

speargun fishing gear, the proposed rule 

has been amended to include, consistent 

with the changes in item 21 above, a 

restriction which limits the use of 

speargun fishing gear to the recreational 

BAYS tuna fishery only. Additionally, 

the regulatory text has been clarified to 

state that persons authorized to fish for 

Atlantic BAYS tunas with speargun gear 

must be physically in the water when 

the speargun is fired or discharged, 

given that the speargun does not use an 

explosive device. 

23. In the final rule, at § 635.31(a)(1), 

the ability to sell tunas harvested with 

speargun gear has been modified. The 

proposed rule would have allowed the 

sale of speared BAYS tunas from HMS 

Charter/Headboat category vessels, 

subject to applicable limits, and would 

not have allowed the sale of large 

medium or giant BFT taken with 

speargun fishing gear at § 635.31(a)(1). 

In the final rule, § 635.31(a)(1) has been 

modified to state specifically that 

persons may not sell or purchase 

Atlantic tunas, BAYS or BFT, harvested 

with speargun fishing gear. This 

modification clarifies that authorizing 

this gear type for recreational speargun 

fishermen allows them the opportunity 

to use speargun fishing gear to target 

BAYS tunas only, recreationally. 

24. To reinforce speargun fishing gear 

operation and deployment restrictions 

at § 635.21(f) and restrictions on sale 

and purchase at § 635.31(a)(1), 

additional prohibitions have been added 

at § 635.71(b). Under this section, it is 

unlawful for any person or vessel 

subject to the jurisdiction of the United 

States to: fish for any HMS, other than 

Atlantic BAYS tunas, with speargun 

fishing gear; sell, purchase, barter for, or 

trade for an Atlantic BAYS tuna 

harvested with speargun fishing gear; 

fire or discharge speargun gear without 

being physically in the water; use 

speargun gear to harvest a BAYS tuna 

restricted by fishing lines or other 

means; or, use speargun gear to fish for 

BAYS tunas from a vessel that does not 

possess a valid HMS Angling or Charter/ 

Headboat permit. 

25. Based on public comments, as 

described in the Response to Comments 

section of the preamble, NMFS has 

determined to clarify the currently 

allowed use of the green-stick gear 

rather than proceed with authorization 

and definition of the gear-type in a 

manner that may further add to 

confusion and have unintended 

negative consequences to fishery 

resources and participants. Accordingly, 

all references to green-stick gear that 

were contained in the proposed rule 

have been removed. These references 

were contained in the LOF at 

§ 600.725(v), and in the HMS 

regulations at § 635.2, § 635.21(e)(1), 

§ 635.21(e)(1)(ii) and (iii), and 

§ 635.31(a)(1). 

26. In § 635.2, the definition of buoy 

gear has been modified. In the proposed 

rule, this definition contained language 

restricting the gear operation and 

deployment. This regulatory text has 

been removed from the definition of 

buoy gear and has been moved to the 

gear operation and deployment 

restrictions at § 635.21(e)(4)(iii). 

Additionally, NMFS has altered the 

definition of buoy gear in the final rule 

in response to public comment. The 

proposed rule limited fishermen 

utilizing buoy gear to deploying only 

one buoy per individual buoy gear. The 

final rule allows the use of more than 

one floatation device per gear and 

allows fishermen to configure the gear 

differently depending on vessel and 

crew capabilities, or weather and sea 

conditions. In the final rule, buoy gear 

is defined as a fishing gear consisting of 

one or more floatation devices 

supporting a single mainline to which 

no more than two hooks or gangions are 

attached. 

27. In § 635.2, a definition of 

‘‘floatation device’’ has been added to 

clarify the intent of the buoy gear 

definition at § 635.2 and the gear 

operation and deployment restrictions 

at § 635.21(e)(4)(iii). Further, this 

definition is responsive to public 

comment and better reflects the 

operational reality of this fishery. The 

inclusion of this definition rectifies 

potential problems in enforcing the float 

restriction in the proposed rule. 

28. In § 635.6(c)(1) and (2), buoy gear 

has been added to the list of gears for 

which there are specific gear marking 

requirements. 

29. In § 635.21(e)(4)(iii), the gear 

operation and deployment restrictions 

for buoy gear have been modified to 

require that vessels utilizing buoy gear 

may not possess or deploy more than 35 

floatation devices and to clarify the 

original intent of the proposed rule. The 

proposed rule stated that vessels may 

not possess or deploy more than 35 

individual buoys per vessel. This 

modification was made to allow for 

additional flexibility in constructing 

and deploying this gear type, as 

discussed in item 26 above. The 

additional restrictions added to clarify 

the intent of the rule include: buoy gear 

must be constructed and deployed so 

that the hooks and/or gangions are 

attached to the vertical portion of the 

mainline; floatation devices may be 

attached to one, but not both ends of the 

mainline, and no hooks or gangions may 

be attached to any floatation device or 

horizontal portion of the mainline; if 

more than one floatation device is 

attached to a buoy gear, no hook or 

gangion may be attached to the mainline 

between them; individual buoy gears 

may not be linked, clipped, or 

connected together in any way; and, if 

a gear monitoring device is positively 

buoyant and rigged to be attached to a 

fishing gear, it is included in the 35 

floatation device vessel limit and must 

be marked appropriately. 

30. To reinforce buoy gear operation 

and deployment restrictions at 

§ 635.21(e)(4)(iii), prohibitions have 

been added at § 635.71(e). Under this 

section, it is unlawful for any person or 

vessel subject to the jurisdiction of the 

U.S. to: fish for, catch, possess, retain, 

or land an Atlantic swordfish using, or 

captured on, buoy gear as defined at 

§ 635.2, unless the vessel owner has 

been issued a swordfish directed LAP or 

a swordfish handgear LAP in 

accordance with § 635.4(f); as the owner 

of a vessel permitted, or required to be 

permitted, in the swordfish directed or 

a swordfish handgear LAP category, and 

utilizing buoy gear, to possess or deploy 

more than 35 individual floatation 

devices, to deploy more than 35 

individual buoy gears per vessel, or to 

deploy buoy gear without affixed 

monitoring equipment, as specified at 

§ 635.21(e)(4)(iii); fail to mark each buoy 

gear as required at § 635.6(c); possess 

any HMS, other than Atlantic swordfish, 

harvested with buoy gear; or, fail to 


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construct, deploy, or retrieve buoy gear 

as specified at § 635.21(e)(4)(iii). 

31. In addition to the restrictions set 

forth in the proposed rule at § 635.21(b), 

the regulatory text has been modified to 

state that no person may use secondary 

gears to capture, or attempt to capture, 

free-swimming or undersized HMS. 

This language was modified to 

differentiate between primary and 

secondary gears. 

32. In § 635.71(a), the general 

prohibitions section, a prohibition has 

been added to reinforce the general gear 

operation and deployment restrictions 

at § 635.21(b). The prohibition in the 

final rule states that, it is unlawful for 

any person or vessel subject to the 

jurisdiction of the U.S. to utilize 

secondary gears to capture, or attempt to 

capture, any undersized or freeswimming HMS, or fail to release a 

captured HMS as specified at 

§ 635.21(a). 

33. In the proposed rule, NMFS added 

regulatory text at § 635.5(a)(1) specifying 

that the annual ‘‘cost-earnings’’

reporting form from selected vessels was 

to be submitted by January 31 of the 

following year. In the final rule, the 

regulatory text has been clarified and 

changed to specify that the ‘‘Annual 

Expenditures’’ reporting form from 

selected vessels is required to be 

submitted by the date specified on the 

form. The date currently specified on 

the form is January 31 of the following 

year, but this modification will allow 

NMFS to change the date on the form 

through a revision to the Paperwork 

Reduction Act submission without 

conducting a separate rulemaking to 

change the regulatory text. NMFS is 

considering, based on public comment, 

modifying the date to April 15 of the 

following year to coincide with Federal 

tax return submission deadlines. NMFS 

has clarified the title of the form to more 

accurately reflect its actual title. 

34. In the proposed rule, the 

regulatory text at § 635.5(c)(2) would be 

modified to indicate that vessel owners, 

rather than anglers, are required to 

report all non-tournament recreational 

landings of Atlantic billfish and North 

Atlantic swordfish to NMFS. Based 

upon public comment indicating that 

some vessel owners may be absent 

while having another captain operate 

the vessel, the regulation in the final 

rule has been modified to indicate that 

vessel owners, or their designee, are 

required to report non-tournament 

recreational landings of these species to 

NMFS. The vessel owner would still be 

responsible for reporting, but the 

owner’s designee could fulfill the 

requirement. 

35. The proposed rule at 

§ 635.21(c)(1)(i) and (d)(4)(i) stated that 

the percent of pelagic species that 

bottom longline vessels could possess in 

PLL closed areas was to be measured 

relative to the weight of demersal 

species possessed or landed, and that 

the percent of demersal species that 

pelagic longline vessels could possess in 

BLL closed areas was to be measured 

relative to the weight of pelagic species 

possessed or landed, respectively. In the 

final rule, at § 635.21(c)(1) and (d)(4), 

this procedure is corrected and clarified 

to indicate that the percent of either 

type of species is to be measured 

relative to the total weight of all 

indicator species that are listed in 

Tables 2 and 3 of Appendix A to part 

635. 

36. The proposed rule at 

§ 635.21(c)(1)(ii) and (d)(4)(ii) would 

have established an upper and lower 

limit on the number of commercial 

fishing floats that bottom and pelagic 

longline vessels, respectively, could 

possess or deploy if fishing in an HMS 

closed area. Based upon public 

comment indicating that this measure 

could severely reduce the operational 

flexibility of longline vessels, and 

consultations with NMFS Office of Law 

Enforcement indicating that the 

proposed regulation was impractical, 

NMFS has decided to remove this 

measure from the final regulations. 

37. In the Draft Consolidated HMS 

FMP, NMFS preferred alternative I10(b), 

which would have amended the 

regulatory text to clarify that carry-over 

provisions would apply to the NED setaside. However, after subsequent 

analysis of the ICCAT recommendation 

and in response to comments seeking 

clarification, the Agency determined 

that the ICCAT recommendation 

provides the flexibility to avoid any 

potential negative environmental 

impacts associated with this alternative. 

Therefore, alternative I10(c) is the final 

alternative in the Final Consolidated 

HMS FMP. Under this alternative, 

NMFS will conduct additional 

discussions at ICCAT regarding the 

long-term implications of allowing 

unused BFT quota from the previous 

year to be added to the subsequent 

year’s allocation. Depending upon the 

results of these discussions, the 

regulations and operational procedures 

may need to be further amended in the 

future. In the interim, NMFS will 

maintain the proposed regulatory text at 

§ 635.27(a)(3) and § 635.23(f)(3), as it 

meets the objectives being addressed 

regarding this issue, but will amend the 

practice of allowing under/overharvest 

of this set-aside allocation to be rolled 

into, or deducted from, the subsequent 

fishing year’s set-aside allocation. 

38. NMFS has modified the proposed 

list of demersal ‘‘indicator’’ species in 

Table 3 of Appendix A to part 635 by 

removing silky sharks and three species 

of hammerhead sharks from the final 

list, because these species could 

potentially be caught on both pelagic 

and bottom longlines. Also, three 

species of tilefish are added to the final 

list of demersal ‘‘indicator’’ species, 

because these species are indicative of 

bottom longline fishing activity and 

based upon public comment. 

39. In the final rule, NMFS modified 

the name of the FMP in § 635.34(b) to 

reflect the consolidation of the two 

previous FMPs into one. 

Agency Decision on the Blue Ocean 

Institute’s Petition for Rulemaking to 

Close an Area of the Gulf of Mexico 

from April through June 

One of the Gulf of Mexico time/area 

closure alternatives that NMFS 

considered was suggested in a petition 

for rulemaking from Blue Ocean 

Institute et al. This alternative was 

suggested as a means of protecting 

western Atlantic BFT that return to the 

Gulf of Mexico to spawn. This 

alternative would prohibit the use of 

pelagic longline gear in HMS fisheries 

in a putative BFT spawning area from 

April through June (101,670 nm2; 3 

months). Assuming no redistribution of 

effort (i.e., all affected vessels no longer 

fish with pelagic longline), the logbook 

data indicated that this alternative 

would potentially reduce bycatch of all 

of the species being considered from a 

minimum of 0.8 percent for pelagic 

sharks to a maximum 21.5 percent for 

BFT. However, assuming that effort is 

redistributed to open areas (i.e., all 

affected vessels fish with pelagic 

longline in open areas), bycatch was 

predicted to increase for all species 

except leatherback and other sea turtles. 

Even BFT discards, which showed a 

fairly dramatic decline without 

redistribution of effort, were predicted 

to increase by 9.8 percent with 

redistribution of effort. The apparent 

increase in predicted BFT discards with 

redistribution of effort was likely due to 

the fact that BFT are caught in months 

other than April through June in the 

Gulf of Mexico, as well as the high 

number of BFT discards in other areas. 

This was reflected in some of the other 

alternatives analyzed as described in the 

HMS FMP. When effort was 

redistributed to only the open areas of 

the Gulf of Mexico and in an area in the 

Atlantic where many Gulf of Mexico 

vessels have reported fishing, there was 

a predicted decrease in bycatch of white 


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marlin, leatherback and other sea 

turtles, and pelagic shark discards, BFT 

discards, yellowfin tuna discards, and 

BAYS tuna discards. However, the 

analysis also predicted an increase in 

bycatch of blue marlin, sailfish, 

spearfish, and large coastal sharks. 

This alternative based on the petition 

would potentially impact a total of 75 

vessels that fished in the area from 2001 

- 2003. Without redistribution of effort, 

this alternative would potentially result 

in a 13.4 percent decrease in fishing 

effort, and reductions in landings 

ranging from a minimum of 9.9 percent 

for incidentally-caught BFT (kept) to a 

maximum 27.0 percent for bigeye tuna. 

The total loss in revenue for this 

alternative, assuming no redistribution 

of effort, would be approximately 

$3,136,229 annually, or $49,003 per 

vessel annually. With redistribution of 

fishing effort, the alternative was 

predicted to result in a decrease in 

bluefin and yellowfin tuna landings of 

18.3 and 11.0 percent, respectively, for 

estimated losses of approximately 

$166,040 and $1,382,042 annually. 

However, overall there could have been 

a net gain in revenues for this 

alternative with redistribution of effort 

of approximately $1,651,023 annually, 

or $25,797 per vessel annually. The 

actual ecological and economic impacts 

of the alternative would likely be in 

between no redistribution of effort and 

the full redistribution of effort model. 

As described in the Final HMS FMP and 

in the response to Comment 26 of the 

time/area section, NMFS also evaluated 

additional scenarios between these base 

scenarios when some movement is 

expected into a particular area (i.e., 

instead of being uniformly distributed to 

all open areas), depending on the spatial 

and temporal duration of the closure. 

For this particular alternative for the 

petition, in addition to the base 

scenarios, NMFS also evaluated the 

movement of fishing effort to other open 

areas in the Gulf of Mexico and to a 

specific area in the Atlantic Ocean. Due 

to the potential negative ecological 

impacts, negative economic impacts, 

and the increase in bycatch and discards 

based on the different redistribution of 

effort scenarios, NMFS is not selecting 

this alternative at this time. 

In addition to the variability of 

impacts across species, all of the 

analyses, including those for the 

petition for rulemaking, were conducted 

using J-hook data. New circle hook 

management measures were put into 

place in 2004, and NMFS is still 

assessing the effects of circle hooks on 

bycatch rates for HMS. Until NMFS can 

better evaluate the effects of circle hooks 

on bycatch reduction, especially with 

regard to sea turtle interactions and 

bycatch of other non-target HMS, NMFS 

chooses, at this time, not to modify the 

current time/area closures. NMFS 

intends to reconsider modifications to 

existing closures once further analyses 

of circle hook data and the results of the 

stock assessments for blue marlin, white 

marlin, north and south swordfish, and 

eastern and western BFT become 

available. Pending the results of the 

marlin, swordfish, and BFT stock 

assessments, the criteria could allow for 

additional closures or modifications of 

existing closures to be considered for all 

HMS fisheries, including those to 

reduce the incidental takes of BFT. 

Although NMFS is not selecting this 

alternative based on the petition at this 

time, NMFS will pursue alternatives to 

reduce bycatch in the Gulf of Mexico, 

especially for spawning BFT. NMFS has 

currently adopted all of the ICCAT 

recommendations regarding BFT, a 

rebuilding plan is in place domestically 

for this species, and NMFS has 

implemented measures to rebuild this 

overfished stock. NMFS is currently 

assessing different protections for 

different ages of BFT and how such 

protection will affect the BFT stock as 

a whole. For instance, how will 

protecting spawning BFT in the Gulf of 

Mexico help rebuild the stock if it 

results in increased discards of juvenile 

and sub-adult BFT along the U.S. east 

coast? NMFS needs more information to 

further understand how to manage this 

species given its complex migratory 

patterns, life history, and age structure. 

NMFS is also considering developing 

incentives that would dissuade 

fishermen from keeping incidentally 

caught BFT, particularly spawning BFT, 

in the Gulf of Mexico. This may involve 

research on how changes in fishing 

practices may help reduce bycatch of 

non-target species as well as the 

tracking of discards (dead and alive) by 

all gear types. In addition, NMFS is also 

considering the effects of sea surface 

temperatures in the Gulf of Mexico and 

its association with congregations of 

BFT and putative BFT spawning 

grounds in the Gulf of Mexico (Block, 

pers. comm.). NMFS intends to 

investigate the variability associated 

with sea surface temperatures as well as 

the temporal and spatial consistency of 

the association with these temperature 

regimes. By better understanding what 

influences the distribution and timing of 

BFT in the Gulf of Mexico, NMFS can 

work on developing tailored 

management measures over space and 

time to maximize ecological benefits 

while minimizing economic impacts, to 

the extent practicable. 

Classification 

This final rule is published under the 

authority of the Magnuson-Stevens Act, 

16 U.S.C. 1801 et seq. NMFS has 

determined that the final rule and 

related Final Consolidated HMS FMP 

are consistent with the national 

standards of the Magnuson-Stevens Act, 

other provisions of the Act, and other 

applicable laws. 

NMFS prepared an FEIS for the Final 

Consolidated HMS FMP. The FEIS was 

filed with the EPA on July 7, 2006. A 

notice of availability was published on 

July 14, 2006 (71 FR 40096). In 

approving this final rule and the Final 

Consolidated HMS FMP, NMFS issued 

a ROD identifying the selected 

alternatives. A copy of the ROD is 

available from NMFS (see ADDRESSES). 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

This final rule contains no new 

collection-of-information requirements 

subject to review and approval by OMB 

under the PRA. 

An informal consultation under the 

ESA was concluded for the Final 

Consolidated HMS FMP on January 25, 

2006. As a result of the informal 

consultation, the Regional 

Administrator determined that fishing 

activities conducted under this rule are 

not likely to affect adversely endangered 

or threatened species or critical habitat. 

As described in the Final Consolidated 

HMS FMP, the final management 

measures are not expected to cause 

significant changes in fishing practices, 

distribution of fishing, or fishing effort. 

As such, reinitiation of consultation 

with respect to the previously 

concluded HMS biological opinions is 

not required under 50 CFR 402.16. 

In addition to the impacts of the final 

alternatives in this document, NMFS 

continues to monitor impacts to 

protected species from the ongoing 

operation of HMS fisheries through 

various logbook and observer programs. 

NMFS monitors observed interactions 

with marine mammals and sea turtles in 

the pelagic longline fishery on a 

quarterly basis and reviews the data in 

conjunction with extrapolated annual 

take estimates for appropriate action, if 

any, as necessary. Should additional 

management measures be deemed 

necessary to reduce bycatch or bycatch 

mortality of protected species in the 

pelagic longline or other HMS fisheries, 

NMFS would take appropriate action in 

a separate rulemaking. 

The AA has determined that this rule 

is consistent to the maximum extent 

practicable with the enforceable policies 

of the coastal states in the Atlantic, Gulf 


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of Mexico, and Caribbean that have 

federally approved coastal zone 

management programs under the 

Coastal Zone Management Act (CZMA). 

In August 2005, NMFS provided all 

states, Puerto Rico, and the U.S. Virgin 

Islands copies of the proposed rule and 

Draft Consolidated HMS FMP. Under 15 

CFR 930.41, states have 60 days to 

respond after receipt of the consistency 

determination and supporting materials. 

States can request an extension of 15 

days. If a response is not received 

within those time limits, NMFS can 

presume concurrence (15 CFR 

930.41(a)). Eleven states replied, within 

the 60-day response period, that the 

proposed regulations were consistent, to 

the extent practicable, with the 

enforceable policies of their coastal zone 

management programs. The State of 

Georgia replied on March 1, 2006, that 

the proposed rule was not consistent 

with the enforceable policies of 

Georgia’s coastal zone management 

program. NMFS notified the State of 

Georgia that because their response was 

after the 60-day response period, NMFS 

presumed concurrence after the end of 

the CZMA review period and would 

consider their comment as part of the 

public comments received on the 

proposed rule and Draft Consolidated 

HMS FMP. NMFS has presumed 

concurrence with the states that did not 

respond. NMFS will continue to work 

with the states to ensure consistency 

between state and Federal regulations. 

A Summary of the Final Regulatory 

Flexibility Analysis 

As required under the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq., 

NMFS prepared an Initial Regulatory 

Flexibility Analysis (IRFA) for the Draft 

Consolidated HMS FMP and its 

proposed rule (70 FR 48804, August 19, 

2005) and prepared an FRFA for the 

Final Consolidated HMS FMP and this 

final rule. The FRFA examines the 

economic impacts of the management 

alternatives on small entities in order to 

determine ways to minimize economic 

impacts. The FRFA incorporates the 

IRFA, a summary of the significant 

issues raised by the public comments in 

response to the IRFA, NMFS responses 

to those comments, and a summary of 

the analyses completed to support the 

action. A summary of the information 

presented in the FRFA follows. Where 

applicable, within each section of the 

FRFA, the issues are addressed in the 

same order they were in the FEIS and 

in the Response to Comment section of 

this final rule, starting with Workshops 

and ending with Regulatory 

Housekeeping Measures. The Final 

Consolidated HMS FMP provides 

further discussion of the economic 

impacts of all the alternatives 

considered. Copies are available (see 

ADDRESSES). 

Statement of the Need for and 

Objectives of the Final Rule 

The need for and objective of the final 

rule are fully described in the preamble 

of the proposed rule (70 FR 48804, 

August 19, 2005) and in the Final 

Consolidated HMS FMP and are not 

repeated here (5 U.S.C. 604(a)(1)). In 

summary, the selected actions in this 

final rule will: establish mandatory 

workshops for commercial fishermen 

and shark dealers; implement 

complementary time/area closures in 

the Gulf of Mexico (GOM); implement 

criteria for adding new or modifying 

existing time/area closures; address 

rebuilding and overfishing of northern 

albacore tuna and finetooth sharks; 

implement recreational management 

measures for Atlantic billfish; modify 

bluefin tuna (BFT) General Category 

subperiod quotas and simplify the 

management process of BFT; change the 

fishing year for tunas, swordfish, and 

billfish to a calendar year; authorize 

speargun fishing gear in the recreational 

fishery for bigeye, albacore, yellowfin, 

and skipjack (BAYS) tunas; authorize 

buoy gear in the commercial swordfish 

handgear fishery; clarify the allowance 

of secondary gears (also known as 

cockpit gears); and clarify existing 

regulations. 

A Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA 

A FRFA is also required to include a 

summary of the significant issues raised 

by the public comments in response to 

the IRFA, a summary of the assessment 

of the issues raised, and a statement of 

any changes made in the rule as a result 

of the comments (5 U.S.C. 604(a)(2)). 

NMFS did not receive any comments 

specific to the IRFA but did receive 

many comments on the Draft 

Consolidated HMS FMP as a whole and 

the general economic impacts of the 

proposed regulations. All the comments 

received and NMFS’ responses to those 

comments are summarized above under 

Response to Comments. Additionally, 

NMFS describes the changes to the 

proposed rule (some of these changes 

were a result of public comment) above, 

under Changes from the Proposed Rule. 

The paragraphs below summarize some 

of the specific economic concerns that 

were raised and NMFS’ response. 

A. Workshops 

NMFS received many public 

comments both in support of and 

opposed to the protected species 

workshops. Some commenters were 

concerned about potential lost revenue 

on longline trips if bycatch were to be 

handled correctly, and recommended 

not limiting these workshops to longline 

fishermen. Some comments supported 

extending the workshop requirements to 

include all HMS fishermen, as well as 

expanding the release techniques to 

include additional species. NMFS 

received many comments suggesting 

that various combinations of owners, 

operators, and crew members be 

required to participate in the 

workshops. Commenters noted that if 

the crew members are not required to 

attend, then the operators should be 

responsible for training the crew. 

Several commenters opposed requiring 

the crew to be certified because of their 

transient nature and the fact that some 

crew members are not U.S. citizens and 

may not be available to attend 

workshops. A few commenters 

supported grandfathering in the 

industry certified individuals, so that 

they do not need to attend the first 

round of mandatory workshops (they 

would still need to be recertified). 

This rule will require that vessel 

owners and operators attend the 

workshops. This requirement for vessel 

owners and operators balances the 

ecological need to ensure that fishermen 

on the vessel can use the handling and 

release gear appropriately and the 

economic costs to the fishermen to 

attend the workshops. While the final 

rule will not require crew members to 

attend the workshops, it is likely that 

operators and owners would 

disseminate this information to the crew 

in a cost effective manner. NMFS 

encourages all workshop participants to 

disseminate this information to all crew 

members involved with haul-back or 

fishing activities. This rule will also 

grandfather in the industry-certified 

individuals. While NMFS realizes that 

many vessel owners may not operate or 

be present on the vessels during fishing 

trips, certifying vessel owners ensures 

that they are aware of the certification 

requirements and protocols. The owners 

are, then, accountable for preventing 

their vessel from engaging in fishing 

activities without a certified operator on 

board. NMFS did not change the 

proposed rule as a result of these 

comments, but did clarify portions of 

the regulatory text to ensure the 

implementation is clear. 

NMFS received several comments in 

support of time periods for renewal of 

certification that were different than the 

proposed alternative. NMFS is 

maintaining the original preferred 

alternative of recertification generally 


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every three years in order to balance the 

ecological benefits of maintaining 

familiarity with the protocols and 

species identification, and the economic 

impacts of workshop attendance due to 

travel costs and lost fishing 

opportunities. 

NMFS received comments regarding 

the need for proxies for dealers 

attending shark identification 

workshops under alternative A9, the 

flexibility required in certifying newly 

hired proxies, and the need for multiple 

proxies. Alternative A9 was modified to 

address these comments and allow for 

dealer proxies. Because not all shark 

dealer permit holders may be onsite 

where vessels unload their catches, this 

rule will permit a local proxy to attend 

the workshop to obtain the proper 

training in species-specific shark 

identification, while allowing the 

permit holder to meet the certification 

requirements. Furthermore, since the 

actual permit holders may not be 

involved in fish house activities, the 

workshops would more effectively 

decrease the reporting of unknown 

sharks if a proxy who is directly 

involved with fish house activities 

attends and obtains the training in lieu 

of the permit holder. If a dealer opts to 

send a proxy, then the dealer would be 

required to designate a proxy from each 

place of business covered by the dealer’s 

permit. A proxy would be a person who 

is employed by a place of business, 

covered by a dealer’s permit, a primary 

participant in identification, weighing, 

or first receipt of fish as they are 

offloaded from a vessel, and involved in 

filling out dealer reports. 

According to public comment, NMFS 

should anticipate turnover in dealer 

proxies. To address this, the Agency is 

allowing one-on-one training sessions 

that would accommodate the 

replacement of a proxy whose 

employment was terminated on short 

notice. These sessions would be at the 

expense of the permit holder. 

Public comments were supportive of 

mandatory HMS identification 

workshops for federally permitted shark 

dealers, but also suggested that these 

workshops be available to others, such 

as the recreational and commercial 

fishery, law enforcement, port agents, 

and state shark dealers. While these 

workshops would be mandatory for 

federally permitted shark dealers, NMFS 

would try to accommodate other 

interested individuals when it is 

feasible. At well-attended workshops, 

those persons for whom the workshops 

are mandatory would be given priority 

in terms of hands-on instruction. 

B. Time/Area Closures 

NMFS also received comments on the 

time/area closure alternatives. A 

number of commenters expressed 

concern over the effort redistribution 

model used to analyze these 

alternatives. These commenters felt that 

pelagic longline vessels were not mobile 

enough to redistribute effort uniformly 

and that vessels in a certain area would 

move to adjacent areas (e.g., vessels 

homeported in the Gulf of Mexico 

would stay in the Gulf of Mexico and 

would not move into the mid-Atlantic 

bight). NMFS received comments that 

different approaches to effort 

redistribution should be considered, 

particularly for closures of bluefin tuna 

in spawning areas in the Gulf of Mexico. 

As a result, NMFS considered 

redistribution of effort based on an 

analysis of the mobility of the PLL fleet 

and known effort displacement 

currently taking place out of the Gulf of 

Mexico. Based on this revised approach, 

NMFS determined that the closures in 

the Gulf of Mexico could increase 

bycatch for some of the species being 

considered. Therefore, NMFS decided 

not to implement any new time/area 

closures, other than complementary 

closures for Madison-Swanson and 

Steamboat Lumps. 

During the comment period, NMFS 

also received comments regarding a 

‘‘decision matrix’’ that could help to 

guide the choices that NMFS would 

have to make between different time/ 

area closures and different species, that 

NMFS should set bycatch reduction 

goals, and that the bycatch reduction 

goals of the existing closures have 

already been met and, therefore, the 

Agency should reopen portions of the 

current closures. As discussed in the 

response to Comment 20 in the Time/ 

Area Closures section, NMFS agrees that 

decision matrices and bycatch reduction 

goals could be useful, but does not 

believe that NMFS could use these 

concepts to appropriately balance the 

needs of the different species involved 

at this time. NMFS did not change the 

proposed rule as a result of these 

comments. 

C. Northern Albacore Tuna 

NMFS did not receive many 

comments in regard to the alternatives 

considered for northern albacore tuna. 

None of the comments received were in 

regard to the economic impacts. NMFS 

did not change the preferred alternative 

as a result of public comment. 

D. Finetooth Sharks 

NMFS received a range of public 

comments regarding finetooth shark 

alternatives indicating support and 

opposition to Alternatives D2–D4, and 

additional comments, including, but not 

limited to: comments on gillnet fisheries 

in general, the use of VMS, the results 

of the 2002 SCS stock assessment, 

reporting of HMS by dealers, 

identification of finetooth sharks, and 

the accuracy of data attained from 

MRFSS. All of these comments were 

considered prior to selection of the final 

alternative for preventing overfishing of 

finetooth sharks. NMFS did not change 

the proposed alternative as a result of 

these comments. Additional measures 

may be necessary to prevent overfishing 

of finetooth sharks in the future. 

E. Atlantic Billfish 

NMFS received many comments 

regarding Atlantic billfish alternatives. 

NMFS received substantial public 

comment opposing and supporting 

circle hook requirements proposed 

under draft alternatives E2 and E3. A 

prevalent theme of the comments 

opposing mandatory circle hook use, in 

all or portions of the HMS and billfish 

recreational fisheries, was that the 

recreational sector has a minor impact 

on Atlantic billfish populations relative 

to the commercial pelagic longline fleet. 

Given the relatively small size of the 

U.S. domestic pelagic longline fleet and 

the considerable size of the recreational 

fishing fleet, NMFS determined that it 

was appropriate to examine billfish 

mortality from the domestic perspective 

in addition to working internationally 

through ICCAT. NMFS did not change 

the proposed action, alternative E3, as a 

result of public comment. The final 

action will require non-offset circle 

hooks at all billfish tournaments if 

natural or natural/artificial baits are 

used. 

A second important theme in 

comments opposing mandatory circle 

hook use under alternatives E2 and E3 

was the need for NMFS to promulgate 

more detailed specifications for circle 

hooks. NMFS is continuing to work on 

various definitions of circle hooks that 

may lead to a more refined hook 

definition in the future. However, 

NMFS finds that it is appropriate to 

require the use of circle hooks in 

portions of the recreational billfish 

fishery, at this time, to reduce postrelease mortalities in the recreational 

billfish fishery. 

NMFS also received comments that 

billfish tournament operators would 

need advance notice of impending circle 

hook regulations to allow for production 

of rules, advertising, and informing 

tournament participants of potential 

circle hook requirements. In response, 

NMFS spoke to a number of tournament 


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operators in the Atlantic, Gulf of Mexico 

and Caribbean to better understand 

various aspects of tournament 

operations, and determined that a 

delayed date of effectiveness of no less 

than six months would be necessary to 

minimize adverse impacts to 

tournament operators and participants. 

Significant outreach efforts have been 

undertaken by NMFS since the release 

of the FEIS in July 2006 to address the 

need for advanced notice. Therefore, the 

effective date of the requirement will be 

January 1, 2007. This effective date in 

combination with continued outreach 

effort by NMFS will provide billfish 

tournament anglers additional time to 

familiarize themselves and become 

proficient in the use of circle hooks, 

while allowing tournament operators to 

adjust tournament rules, formats, and 

informational materials, as appropriate, 

thereby minimizing any potential 

adverse socio-economic impacts. 

Additionally, given the concerns 

expressed from fishermen in the midAtlantic region since the release of the 

FEIS regarding this requirement, NMFS 

intends to work cooperatively with 

tournaments and anglers to research 

other bait and/or hook and bait 

combinations that would achieve the 

same ecological benefits. 

NMFS also received public comments 

regarding the perceived limited 

ecological impact of the 250 marlin 

landings limit. These comments could 

be categorized into two opposing views 

that suggest two different courses of 

action. Some commenters suggested that 

the limited ecological impact was not 

worth any potential adverse economic 

impact, even a very limited one, while 

other commenters suggested that the 

U.S. must implement the 250 marlin 

landings limit to comply with U.S. 

international obligations and as part of 

a strategy to implement appropriate 

measures to help limit billfish mortality. 

Related to these comments, NMFS 

received suggestions recommending that 

the Agency automatically carry forward 

any underharvest to the following 

management period. Given that the 

known level of U.S. recreational marlin 

landings has been within the 250 fish 

limit for three of the four reported years, 

and that the 2002 overharvest was offset 

by the 2001 underharvest, the ecological 

benefits of this alternative are likely 

limited. As noted above, in the response 

to Comments 3 and 5 of the Atlantic 

Billfish section, this rule allows 

underharvests to be carried forward. 

However the U.S. has made a 

commitment to ICCAT not to carry 

forward underharvest, given the 

uncertainty surrounding landings of 

Atlantic marlin in the Commonwealth 

of Puerto Rico and the U.S. Caribbean, 

until such time as this is resolved. Thus, 

NMFS is not changing the proposed 

alternative. This rule is anticipated to 

allow the U.S. to continue to 

successfully pursue international marlin 

conservation measures by fully 

implementing U.S. international 

obligations and potentially provide a 

minor ecological impact with, at most, 

minor adverse economic impacts. 

NMFS received public comment 

opposed to, and in support of, the 

Atlantic white marlin catch and release 

alternative. The commenters opposed to 

the alternative expressed concerns over 

potential adverse economic impacts to 

the fishery if catch and release only 

fishing for Atlantic white marlin were 

required. The commenters supporting 

the landings prohibition stated concerns 

over white marlin stock status, the ESA 

listing review, and maintaining 

leadership at the international level. 

Based on these comments as well as a 

number of other factors, including but 

not limited to, the impending receipt of 

a new stock assessment for Atlantic 

white marlin and upcoming 

international negotiations on Atlantic 

marlin, NMFS changed its preferred 

alternative and chose not to prohibit 

landings of Atlantic white marlin in this 

final rule. The implementation of circle 

hook requirements (alternative E3) is an 

important first step in reducing 

mortality in the directed billfish fishery. 

NMFS will consider, as necessary and 

appropriate, catch and release only 

fishing options for Atlantic white marlin 

as well as other billfish conservation 

measures in future rulemakings. 

F. BFT Quota Management 

NMFS received public comment in 

the past regarding the publication and 

timing of annual BFT specifications. 

Administrative or other delays in 

publishing the annual BFT 

specifications can have adverse social 

and economic impacts due to 

constituents’ inability to make informed 

business decisions. NMFS did not 

change the proposed alternative as a 

result of public comment on the 

proposed rule. Under this rule, the 

annual BFT quota specifications would 

establish baseline domestic quota 

category allocations, and adjust those 

allocations based on the previous years 

under- and/or overharvest. Any delay in 

publishing the annual BFT quota 

specifications would prolong the 

establishment of a baseline quota in any 

of the domestic categories. 

Fishermen have commented that 

knowing the exact schedule of BFT 

RFDs prior to the season facilitates 

planning and scheduling of trips. The 

preferred alternative F6 should help 

facilitate the development of timely 

schedules. NMFS did not change the 

proposed alternative as a result of 

public comment on the proposed rule. 

G. Timeframe for Annual Management 

of HMS Fisheries 

Preferred Alternative G2, which 

would change the timeframe for annual 

management of HMS fisheries, was 

modified because the comment period 

on the proposed rule was extended. The 

fishing year in 2007, rather than 2006 as 

described in the Draft Consolidated 

HMS FMP, would be compressed. 

During the public comment period, 

several commenters expressed concern 

about the effect of a calendar year 

management cycle on the availability of 

quota rollover from the previous 

calendar year during the January portion 

of the south Atlantic fishery. Under 

changes to the BFT management 

program included in this rule, the 

January subperiod would receive a 

quota of 5.3 percent of the annual 

ICCAT allocation. 

H. Authorized Fishing Gears 

With regard to authorized gears, there 

were public comments in support of 

preferred alternative H2 to authorize 

speargun fishing as a permissible gear 

type for recreational Altantic BAYS 

tuna. NMFS received comments 

indicating that recreational 

spearfishermen place a high value on 

spearfishing for tunas, and are currently 

traveling outside of the United States for 

the opportunity to participate in tunas 

speargun fisheries. The final rule will 

allow recreational BAYS fishing. This is 

a modification from the proposed rule 

that would have also allowed 

recreational fishing for BFT. Due to 

concern over the status of BFT, NMFS 

decided not to allow spearfishing for 

BFT at this time. 

During the public comment period, 

NMFS received comments expressing 

confusion over the current regulatory 

regime regarding green-stick gear, 

unease over the potential impacts and 

intent of the preferred alternative in the 

Draft Consolidated HMS FMP, and 

concern over potential negative impacts 

of the green-stick gear. Therefore, NMFS 

is not finalizing alternative H4, which 

would have authorized green-stick gear. 

Rather, NMFS will work with the 

industry to ensure participants are 

familiar with current regulations. 

In regard to buoy gear, NMFS received 

public comments requesting that 

commercial vessels be limited to 

deploying fewer than 35 individual 

buoy gears. Additionally, commercial 


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fishermen familiar with this gear type 

requested that they be allowed to attach 

multiple floatation devices to buoy gears 

to aid in monitoring and retrieval, as 

well as allow them to use ‘‘bite 

indicator’’ floats that will alert them to 

gears with fish attached. In response to 

public comment, NMFS modified the 

preferred alternative to allow fishermen 

to use more than one floatation device 

per gear and configure the gear 

differently depending on vessel and 

crew capabilities, or weather and sea 

conditions. This increased flexibility 

may result in positive social impacts 

and increased safety at sea. 

I. Regulatory Housekeeping Measures 

The public also provided comments 

on the proposed regulatory 

housekeeping alternatives. NMFS 

requested public comment regarding 

whether or not to define ‘‘fishing floats’’

in the regulations, and on potential 

language for a ‘‘float’’ definition. Several 

commenters indicated that the number 

of floats is not an appropriate gauge to 

determine the type of fishing gear that 

is being deployed, and that the presence 

of ‘‘bullet floats,’’ anchors, or the type 

of mainline would be better indicators. 

Other commenters stated a float 

requirement would be an unnecessary 

burden that could diminish the 

flexibility of vessel operators to 

participate in different fishing activities, 

depending upon the circumstances. 

Finally, consultations with NMFS Office 

of Law Enforcement indicated that the 

float requirement in alternative I1(b) 

would not be practical. Based on these 

comments, NMFS chose not to prefer 

alternative I1(b) in the FEIS. Although 

alternative I1(b) was preferred in 

conjunction with alternative I1(c) in the 

Draft Consolidated HMS FMP, NMFS 

believes that the objective of this 

alternative can be effectively achieved 

by implementing alternative I1(c) 

(species composition of catch) alone. 

On the basis of public comment, 

NMFS modified the list of demersal 

‘‘indicator’’ species associated with 

alternative I1(c) from the list in the Draft 

Consolidated HMS FMP by removing 

silky, great hammerhead, scalloped 

hammerhead, and smooth hammerhead 

sharks from the list, and by adding 

tilefish, blueline tilefish, and sand 

tilefish to the list. NMFS believes these 

changes are appropriate because these 

shark species can be caught on both 

pelagic and bottom longlines, and 

because the tilefish species are 

representative of demersal fishing 

activity. 

NMFS received comments indicating 

that alternative I1(c) could adversely 

affect longline vessels that fish, at least 

part of a trip, in HMS closed areas and 

that catch both demersal and pelagic 

species on those trips. Similar to the 

comments received regarding alternative 

I1(b), there were concerns that, by 

establishing a species threshold when 

fishing in HMS closed areas, this 

alternative would restrict the flexibility 

of longline vessel operators to 

participate in different fishing activities 

depending upon the circumstances. 

Also, adverse economic impacts could 

result if vessel operators are unable to 

retain a portion of their catch that 

otherwise would have been retained on 

mixed fishing trips in the closed areas, 

or if they must choose to fish outside of 

the closed areas. NMFS received other 

comments indicating that there could be 

additional costs on vessels if they are 

boarded at sea by enforcement, and it 

was necessary to retrieve or observe fish 

in the hold in order to calculate the 

percentages of demersal and pelagic 

species possessed onboard. The Agency, 

however, still finds that this preferred 

alternative is important in maintaining 

existing time/area closures. 

NMFS received comments supporting 

and opposing preferred alternative I2(b), 

which will require that the second 

dorsal fin and anal fin remain on all 

sharks through landing. Some 

comments confirmed that retention of 

the second dorsal and anal fins through 

landing could improve shark 

identification and species-specific 

landing data. Other comments indicated 

that this alternative would do little to 

improve shark identification. NMFS 

received comments that, although these 

fins are valuable, retaining them until 

landing was acceptable. The Agency 

received a comment opposing this 

alternative due to the additional time 

and revenue losses that may result from 

removing the smaller/secondary fins 

after docking. NMFS is finalizing this 

proposed alternative. While offloading 

and processing procedures may initially 

have to be adjusted, in the long-term 

this alternative will facilitate improved 

quota monitoring and stock assessment 

data which could result in a larger quota 

and larger net revenues for both the 

fishermen and dealers. 

Public comment suggests that, among 

active fishery participants, a 

requirement for handlines to remain 

attached to all vessels could potentially 

reduce the number of handlines that 

could be fished or deployed. 

Operationally, it may be less efficient to 

fish with several attached handlines, as 

they may be more prone to 

entanglement. Because this alternative 

could restrict or limit fishing effort and 

because NMFS does not know the 

number of handline users that already 

attach the handline to the vessel, it is 

projected to produce unquantifiable 

positive ecological impacts, including a 

reduction in the bycatch of undersized 

swordfish, other undersized species, 

protected species, and target species 

catches. Based upon public comment 

the practice of detaching handlines does 

not appear to be widespread, but it may 

be growing among a small number of 

vessel operators, primarily targeting 

swordfish in the East Florida Coast 

closed area. According to public 

comment, recreational swordfish 

catches would most likely be affected, 

as that is the primary target species. If 

few recreational vessels are currently 

fishing with unattached handlines, then 

any social or economic impacts 

associated with this alternative would 

be minimal. NMFS did not change this 

alternative between proposed and final 

rules. 

NMFS received comments indicating 

that the proposed alternative (I9(b)), 

which would require vessel owners to 

report non-tournament recreational 

landing of North Atlantic swordfish and 

Atlantic billfish, could potentially 

disadvantage absentee vessel owners. 

Based upon this public comment, NMFS 

modified this alternative slightly from 

the proposed rule by specifying that a 

vessel owner’s designee may also report 

landings in lieu of the owner, but the 

owner would be responsible for the 

requirement. 

Finally, NMFS received several 

general comments regarding the 

information presented regarding the 

HMS recreational sector. Section 3.5.2 

of the FEIS provides detailed 

information regarding the data available 

and past research concerning HMS 

recreational fisheries. Economic data on 

recreational fishing is difficult to collect 

and challenging to interpret. 

Nevertheless, NMFS has undertaken 

efforts to improve, update, and expand 

upon the economic information 

regarding HMS recreational fisheries. 

A Description and an Estimate of the 

Number of Small Entities to which the 

Rule will Apply 

NMFS considers all permit holders to 

be small entities as reflected in the 

Small Business Administration’s (SBA) 

size standards for fishing entities (5 

U.S.C. 604(a)(3)), and the SBA size 

standards for defining a small versus 

large business entity in this industry. 

All permit holders are considered to be 

small entities because they either had 

gross receipts less than $3.5 million for 

fish-harvesting, gross receipts less than 

$6.0 million for charter/party boats, or 

100 or fewer employees for wholesale 

dealers. A full description of the 


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fisheries affected, the categories and 

number of permit holders, and 

registered tournaments can be found in 

the Final Consolidated HMS FMP. 

The management measures in this 

final rule will apply to all HMS permit 

holders. These currently include the 

approximately 576 permitted pelagic 

and bottom longline vessels, 240 

directed shark and 312 incidental shark 

permitted vessels, 4,824 General 

category permit holders, 621 permitted 

shark and swordfish dealers, 416 

permitted Atlantic tuna dealers, 4,173 

CHB permit holders, 25,238 Angling 

permit holders, and 256 registered HMS 

tournaments. Other sectors of the HMS 

fisheries such as dealers, processors, 

bait houses, and gear manufacturers, 

some of which are considered small 

entities, might be indirectly affected by 

the final measures, particularly time/ 

area closures, Atlantic billfish, and 

authorized gear alternatives. However, 

the rule does not apply directly to them, 

unless otherwise noted above. As such, 

economic impacts on these other sectors 

(dealers, processors, bait houses, and 

gear manufacturers) are discussed in 

Final Consolidated HMS FMP. 

A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Final 

Rule 

This final rule will not result in 

additional reporting, recordkeeping, and 

compliance requirements that will 

require new Paperwork Reduction Act 

filings (5 U.S.C. 604(a)(4)). However, 

some of the final measures will modify 

existing reporting and recordkeeping 

requirements. These include mandatory 

one day workshops for vessel owners, 

vessel operators, and shark dealers; 

coordination efforts directed at 

government efforts to gather additional 

information about finetooth shark 

mortality; and BFT dealer electronic 

reporting option. In addition to the 

reporting and recordkeeping 

requirements of this rule, this rule 

includes compliance requirements (5 

U.S.C. 604(a)(4)). These compliance 

requirements include requiring anglers 

aboard HMS permitted vessels that are 

participating in an Atlantic billfish 

tournament to use only non-offset circle 

hooks when deploying natural baits or 

natural bait/artificial lure combinations, 

requiring the retention of shark second 

dorsal and anal fins, and establishing 

the minimum and maximum number of 

floats for bottom longline and pelagic 

longline gear definitions. Other 

measures will change quota allocations, 

timeframes, authorized gear types, 

definitions, and other management 

measures, but will not likely change 

reporting or compliance in the fishery. 

A Description of the Steps Taken to 

Minimize the Significant Economic 

Impact on Small Entities 

One of the requirements of a FRFA is 

to describe the steps the agency has 

taken to minimize the significant 

economic impact on small entities 

consistent with the stated objectives of 

applicable statutes and to describe why 

each of the other significant alternatives 

to the rule considered by the agency was 

rejected (5 U.S.C. 604(a)(5)). 

As noted earlier, NMFS considers all 

permit holders to be small entities. In 

order to meet the objectives of this 

proposed FMP and the statutes (i.e., 

Magnuson-Stevens Act, ATCA, ESA) as 

well as address the management 

concerns at hand, NMFS cannot exempt 

small entities or change the reporting 

requirements for small entities. Among 

other things, the final FMP will set 

quotas for the fishing season, retention 

limits for the recreational fishery, and 

gear restrictions, all of which would not 

be as effective with differing compliance 

and reporting requirements. 

As described below, NMFS 

considered a number of alternatives that 

could minimize the economic impact on 

small entities, particularly those 

pertaining to workshops, time/area 

closures, northern albacore tuna, 

finetooth sharks, Atlantic billfish, BFT 

quota management, timeframe for 

annual management, authorized fishing 

gears, and regulatory housekeeping 

measures. 

A. Workshops 

The final measures for the protected 

species safe handling, release, and 

identification workshops require 

mandatory workshops and certification 

on a three year renewal timeline for all 

HMS pelagic and bottom longline vessel 

owners and operators and shark gillnet 

vessel owners and operators. They were 

designed to minimize the economic 

impacts on fishermen, while complying 

with the 2003 BiOp and the post-release 

mortality targets for protected resources 

established in the June 2004 BiOp. The 

protected species safe handling, release, 

and identification workshops measure is 

estimated to cost each bottom and 

pelagic longline vessel owner up to 

$281 and $448, respectively, in 

potentially lost revenue share as well as 

unquantifiable travel costs to attend a 

workshop. The aggregate economic 

impact is estimated to be between 

$154,269 and $258,048 in the first year. 

Longline vessel operators will also be 

affected by this rule, but this rule might 

not affect the economic well-being of 

the small businesses for which they 

work. In addition, the estimated twenty 

shark gillnet owners that will be 

participating in required workshops will 

each lose up to $424 in revenue share 

based on 2004 logbook data, as well as 

unquantified travel costs to attend a 

workshop. 

NMFS will strive to host a number of 

workshops in regional fishing hubs in 

order to minimize travel and lost fishing 

time. Besides the costs of travel and lost 

time, NMFS does not anticipate any 

additional costs for workshop 

participants. NMFS will attempt to hold 

workshops during periods when the 

fishery is typically inactive, effectively 

minimizing lost fishing time. To 

minimize the overall economic cost of 

these workshops, this rule limits 

mandatory participation in these 

workshops to owners and operators. 

NMFS has also selected a recertification 

period of 3 years that will allow for 

sufficient retraining to maintain 

proficiency and update fishermen on 

new research and development related 

to the subject matter, while not placing 

an excessive economic burden on the 

participants due to lost fishing time and 

travel. Two, three, and five year 

recertification periods were considered. 

In addition, to lower the costs of 

recertification, NMFS is considering the 

use of alternative sources of media 

including CD-ROM, DVDs, or web-based 

media that would not result in travel 

costs or lost fishing time, and would 

allow allow private certified trainers to 

provide training at tailored times and 

locations to minimize any costs. 

The measures requiring mandatory 

workshops for all federally permitted 

shark dealers was selected because 

species-specific identification of 

offloaded shark carcasses is much more 

difficult than other HMS, as evidenced 

by the large proportion of ‘‘unclassified’’

sharks listed on shark dealer logbooks. 

The Agency will attempt to minimize 

economic impacts to shark dealers by 

holding workshops at fishing ports to 

minimize travel costs and during nonpeak fishing times to minimize 

perturbations to business activity, to the 

extent possible. Dealers may also 

specify proxies to attend workshops in 

order to increase flexibility, minimize 

costs, and increase the probability of 

having a trained individual at each 

authorized dealer location. Similar 

measures as those being considered for 

the protected species safe handling, 

release, and identification recertification 

are being considered for the Atlantic 

shark identification workshops for shark 

dealers in order to minimize the 

economic impacts caused by this 

measure. 


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Several alternatives were considered 

for the workshop measures. The 

economic impacts of these alternatives 

are detailed in Final Consolidated HMS 

FMP. The No Action and voluntary 

HMS identification workshop 

alternatives would have less onerous 

economic impacts relative to the 

measures in this final rule. However, 

these alternatives would not address the 

persistent problems associated with 

species-specific shark identification in 

dealer reports, nor satisfy the 

requirements and goals of the Final 

Consolidated HMS FMP, nor aid in 

rebuilding the shark fishery. 

NMFS also considered two additional 

renewal timetables of two and five 

years. A renewal timetable of five years 

for protected species safe handling, 

release, and identification workshops 

would allow a more extensive period of 

time to lapse between certification 

workshops than necessary to maintain 

proficiency and provide updates on 

research and development of handling 

and dehooking protocols. In a similar 

fashion, recertification every five years 

for HMS identification workshops 

would also allow a more extensive 

period of time to lapse between 

certification workshops than necessary 

to maintain proficiency in shark species 

identification. 

B. Time/Area Closures 

The final measures to implement 

complementary measures in the 

Madison-Swanson and Steamboat 

Lumps marine reserves, and to establish 

criteria to be considered when 

implementing new time/area closures or 

modifying existing time/area closures, 

were designed to minimize economic 

impacts incurred by fishermen, while 

simultaneously reducing the bycatch of 

non-target HMS and protected species, 

such as sea turtles, in Atlantic HMS 

fisheries. The establishment of 

complementary HMS regulations in the 

Madison-Swanson and Steamboat 

Lumps marine reserves will result in 

minimal economic impacts (e.g., only 

three commercial sets were reported in 

these areas between 1996 - 2004). 

Creating these complementary HMS 

regulations will consolidate and 

simplify requirements for fishermen, 

and therefore simplify compliance. This 

measure will allow surface trolling from 

May through October to partially 

alleviate any negative economic impacts 

associated with the closures for the 

HMS recreational and charter/headboat 

sector. 

Other time/area alternatives 

considered in addition to the No Action 

alternative were a closure of 11,191 nm2

in the central Gulf of Mexico to pelagic 

longline gear, a closure of 2,251 nm2 in 

the Northeast to pelagic longline gear, a 

closure of 101,670 nm2 in BFT 

spawning areas in the Gulf of Mexico, 

a closure west of 86° W longitude in the 

Gulf of Mexico to pelagic longline gear, 

a closure of 46,956 nm2 in the Northeast 

to pelagic longline gear, a prohibition on 

the use of bottom longline gear in an 

area off the Florida Keys to protect 

endangered smalltooth sawfish, and a 

prohibition on the use of pelagic 

longline gear in HMS fisheries in all 

areas. These closures alternatives were 

not selected due to large economic 

impacts (ranging from an estimated 

decrease in annual revenues as high as 

$10.9 million for a closure west of 86° 

W longitude year-round closure in the 

Gulf of Mexico under the noredistribution of effort model) with 

variable ecological benefits between 

species when considering the 

redistribution of effort. The details of 

the economic impacts associated with 

these other alternatives are provided in 

Final Consolidated HMS FMP. In 

addition to the closure alternatives, 

modifications to existing closures were 

also considered for the Charleston 

Bump closure and the Northeastern U.S. 

closure, which would provide some 

economic relief but would not meet 

ecological needs, and may result in 

increased interactions with protected 

resources. 

The final measure will establish 

criteria that will guide future decisionmaking regarding implementation or 

modification of time/area closures. This 

will provide enhanced transparency, 

predictability, and understanding of 

HMS management decisions. The time/ 

area closure criteria will not have 

immediate impacts. Any ecological, 

social, or economic impacts of a specific 

closure or modified closure would be 

analyzed in the future when that 

specific action is proposed. 

C. Northern Albacore Tuna 

The selected alternative for northern 

albacore management, which will 

establish the foundation for developing 

an international rebuilding program, 

was designed to address rebuilding of 

the northern albacore tuna fishery while 

simultaneously minimizing economic 

impacts incurred by fishermen. This 

measure will have minimal economic 

impacts, because it will not implement 

any additional restrictions at this time. 

Other alternatives considered were No 

Action and taking unilateral 

proportional reductions in northern 

albacore tuna harvest. Taking unilateral 

action to address northern albacore tuna 

on the part of the U.S. would likely not 

be effective in rebuilding the stock 

because the U.S. is a small participant 

in this fishery, and would have larger 

economic impacts than the selected 

alternative. The No Action alternative 

was rejected, because it would not 

include a rebuilding strategy in the 

FMP. 

D. Finetooth Sharks 

The final measure selected for 

finetooth shark management was 

designed to implement a plan that 

prevents overfishing while minimizing 

economic impacts incurred by 

fishermen and potential negative 

ecological impacts. This alternative is 

expected to have minimal to no 

economic impacts, because no new 

restrictions are being proposed at this 

time. Long-term, the alternative will 

have positive ecological and economic 

impacts by implementing a plan to 

address finetooth mortality in HMS and 

other fisheries. 

Other alternatives considered were No 

Action, commercial management 

measures (e.g., gear restrictions, quota 

reduction), and recreational 

management measures (e.g., gear 

restrictions, minimum size increase). 

Only the No Action alternative would 

have less economic impact relative to 

the preferred alternative. However, this 

alternative was not preferred because it 

would not implement a plan to prevent 

overfishing of finetooth sharks. 

E. Atlantic Billfish 

The final measures for Atlantic 

billfish management require the use of 

non-offset circle hooks by anglers 

fishing from HMS permitted vessels 

participating in Atlantic billfish 

tournaments when deploying natural 

baits or natural bait/artificial lure 

combinations and implementing the 

ICCAT marlin landings limits. This 

requirement is designed to minimize 

economic impacts incurred by the 

recreational fishing sector, while 

enhancing the management of the 

directed Atlantic billfish fishery. 

Requiring the use of non-offset circle 

hooks by anglers fishing from HMS 

permitted vessels participating in 

Atlantic billfish tournaments when 

deploying natural baits or natural bait/ 

artificial lure combinations will likely 

have a minimal economic impact, since 

it will not affect all billfish recreational 

anglers, but only tournament 

participants. Therefore, the impacts on 

hook manufacturers, retailers, and 

anglers will likely be limited given that 

J-hooks would continue to be permitted 

outside of tournaments and within 

tournaments with artificial lures. 

Impacts on tournaments will likely be 

minimal, given the increase in the 


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number of tournaments that provide 

special award categories or additional 

points for billfish captured and released 

on circle hooks. This measure will also 

likely have high compliance rates given 

the self-policing that is likely to occur 

among tournament participants 

competing for prizes, as well as the 

increasing use of tournament observers. 

Several measures were also 

considered to minimize the economic 

impacts of the ICCAT marlin landings 

limits. These include the use of three 

separate levels of management measures 

based upon marlin landing thresholds: 

(1) no in-season management action if 

marlin landings do not approach action 

thresholds; (2)in-season minimum size 

increases to slow the pace of marlin 

landings for the remainder of the fishing 

year, if projections show the 250 marlin 

landing limit is being approached; and, 

(3) a shift to catch and release only 

fishing for Atlantic marlin for the 

remainder of a fishing year, if the 250 

marlin landing limit is achieved or 

projected to be achieved. Under the 

calendar year management cycle, this 

three tiered approach also will help 

reduce any disproportionate economic 

impacts to CHB operators, tournaments, 

and anglers who fish for marlin late in 

the fishing year or in late season 

tournaments by providing anglers the 

greatest opportunity to land marlin over 

the entire fishing year. The ICCAT 

landing limit measures may potentially 

result in $1.3 to $2.7 million in 

economic impacts annually, if in-season 

management actions become necessary. 

However, barring substantial increases 

in effort and/or a change in angler 

behavior, this is considered unlikely 

based on historical landings trends. 

Other alternatives considered for the 

directed billfish fishery were No Action, 

limiting all participants in the Atlantic 

HMS recreational fishery to using only 

non-offset circle hooks when deploying 

natural baits or natural bait/artificial 

lure combinations in all HMS fisheries, 

increasing the minimum size limit for 

Atlantic white and/or blue marlin, 

implementing recreational bag limits of 

one Atlantic billfish per vessel per trip, 

allowing only catch and release fishing 

for Atlantic white marlin, and allowing 

only catch-and-release fishing for 

Atlantic blue marlin. Only the No 

Action alternative would have less 

onerous economic impacts relative to 

the measures in this rule. However, the 

No Action alternative would not satisfy 

the requirements and goals of 

implementing the ICCAT 

recommendations under ATCA, 

rebuilding the Atlantic blue and white 

marlin fishery under the MagnusonStevens Act, or the objectives of the 

HMS FMP. While the other alternatives 

may have additional ecological benefits 

for billfish, the other alternatives would 

have larger economic impacts than the 

selected alternatives and could affect all 

HMS anglers, not only those who are 

fishing for billfish. 

F. BFT Quota Management 

The final measures for BFT quota 

management include revised General 

category time-periods and subquotas to 

allow for a formalized winter fishery, 

clarified procedures for calculating the 

Angling category school size-class 

subquota allocation, modification of the 

BFT specification process and 

streamlining annual under/overharvest 

procedures, an individual quota 

category carryover limit and 

authorization of the transfer of quota 

exceeding limit, and revised and 

consolidated criteria that would be 

considered prior to performing a BFT 

inseason action. These measures were 

designed to minimize economic impacts 

incurred by fishermen, while enhancing 

and clarifying BFT quota management 

and inseason actions. 

Revised General category time-periods 

and subquotas to allow for a formalized 

winter fishery will likely balance 

consistent quota allocations and the 

flexibility to amend them in a timely 

fashion. This measure will slightly 

reduce General category quota from 

early time periods, thereby allowing for 

a winter General category BFT fishery 

during the months of December and 

January, and increasing regional access. 

By shifting the allocated quota from the 

June through August time-period, which 

has an overall higher allocation, to a 

later time-period any adverse impacts 

will be mitigated by the increased 

revenue generated in the later timeperiod. 

The revised procedures for calculating 

the Angling category school size-class 

subquota allocation will clarify the 

procedures NMFS uses in calculating 

the ICCAT recommendation regarding 

the 8 percent tolerance for BFT under 

115 cm. It would also maintain the 

north/south dividing line that separates 

the Angling category. This alternative is 

not likely to have an economic impact. 

The modification of the BFT 

specification process and streamlining 

annual under/overharvest procedures 

will simplify quota allocations by 

eliminating the need to allocate each 

domestic quota category’s baseline 

allocation each year, as the allocation 

percentages and the actual quota 

equivalents (measured in metric tons) 

will be codified in the regulations 

implementing the consolidated HMS 

FMP at least until ICCAT alters its BFT 

TAC recommendation. This measure 

will have positive economic impacts to 

the domestic BFT fishery as a whole by 

allowing BFT fishery participants, either 

commercial or recreational in nature, to 

make better informed decisions on how 

to best establish a business plan for the 

upcoming season. 

Establishing an individual quota 

category carryover limit for BFT and 

authorization of the transfer of quota 

exceeding the limit will have some 

economic impacts as a result of limiting 

the amount of underharvest of the BFT 

quota that could be rolled over from one 

year to the next within a category. 

However, this measure was designed to 

mitigate any impacts by allowing NMFS 

to redistribute quota exceeding the 

proposed 100 percent rollover cap to the 

Reserve or to other domestic quota 

categories, provided the redistributions 

are consistent with ICCAT 

recommendations and the redistribution 

criteria. 

Revised and consolidated criteria that 

would be considered prior to 

performing a BFT inseason action will 

result in slightly more positive 

economic impacts as the criteria NMFS 

must consider when making an inseason 

action determination will be 

consolidated and consistent regardless 

of what type of inseason action is being 

considered. This will minimize 

confusion and provide additional 

transparency to the management 

process. 

Other alternatives considered 

regarding bluefin tuna quota 

management in addition to the No 

Action alternatives were establishing 

General category time-periods, 

subquotas, and geographic set asides 

annually via framework actions; 

establishing monthly General category 

time-periods and subquotas; revising the 

General category time-periods and 

subquotas to allow for a formalized 

winter fishery with different timeperiod allocations; eliminating the 

underharvest quota carryover 

provisions; and eliminating the BFT 

inseason actions. These additional 

alternatives would not likely reduce 

overall impacts to the fishery as a whole 

relative to the selected final measures. 

G. Timeframe for Annual Management 

of HMS Fisheries 

The final measure that would shift the 

time frame to a calendar year (January 

1 to December 31) management cycle 

was designed to minimize economic 

impacts on HMS fisheries and simplify 

HMS fishery management and reporting 

to ICCAT. This measure will not affect 

the shark fishery, since that fishery is 

already operating under a calendar year. 


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The shift in the other HMS fisheries’

timeframe for annual management 

would establish consistent timing 

between U.S. domestic and 

international management programs, 

reducing the complexity of U.S. reports 

to ICCAT and creating more transparent 

analyses in the U.S. National Report. 

Setting an annual quota and other 

fishery specifications on a multi-year 

basis for BFT could mitigate any 

potential negative impacts associated 

with reduced business planning periods 

that may result from a calendar year 

timeframe. The flexibility established in 

the billfish measures could partially 

mitigate any negative regional economic 

impacts to marlin tournaments, charters, 

and other related recreational fishing 

businesses. To facilitate the transition to 

a calendar year management timeframe 

for BFT and swordfish, the 2007 fishing 

year would be abbreviated from June 1, 

2007, through December 31, 2007, 

which could provide slightly higher 

quotas during that time period and 

slight positive impacts for fishermen. 

Other alternatives considered were to 

maintain the current fishing year and to 

shift the fishing year to June 1 - May 31 

for all HMS species. These alternatives 

are not likely to result in economic 

impacts substantially different than this 

final rule. However, they would not 

meet the objectives of this action 

because these alternatives would not 

simplify the management program for 

HMS fisheries and improve the U.S. 

basis for negotiations at international 

forums that use calendar year reporting 

data. 

H. Authorized Fishing Gears 

The final measures to authorize 

speargun fishing gear for BAYS tunas in 

the recreational Atlantic tuna fishery, 

authorize buoy gear in the commercial 

swordfish handgear fishery, and allow 

secondary gears (also known as cockpit 

gears), were designed to reduce the 

economic impacts to fishermen and 

even enhance economic opportunities 

in recreational and commercial fishing. 

Specifically, the measure authorizing 

speargun fishing will enhance economic 

opportunities in the tuna recreational 

fishery by including a new authorized 

class of recreational fishing, speargun 

fishing. 

The swordfish handgear fishery may 

currently utilize individual handlines 

attached to free-floating buoys; however, 

the final measure will require that 

handlines used in HMS fisheries be 

attached to a vessel. Changing the 

definition of individual free-floating 

buoyed lines, that are currently 

considered to be handlines, to ‘‘buoy 

gear,’’ will allow the commercial 

swordfish handgear fishery to continue 

utilizing this gear type. This measure 

will explicitly authorize this gear type 

but limit vessels to possessing and 

deploying no more than 35 individual 

floatation devices with each gear having 

no more than two hooks or gangions 

attached. The economic impact of this 

measure will likely be minimal, since 

the upper limit on the number of buoys 

is based on information obtained about 

the fishery though public comment, and 

based on what NMFS has identified as 

the manageable upper limit for the 

commercial sector. Furthermore, few 

current permit holders reporting fishing 

with this gear (only seven vessels in 

2004) and the use of this gear appears 

limited to the East Coast of Florida. 

Finally, the measure clarifying the 

allowance of secondary gears (also 

known as cockpit gears) will likely 

reduce confusion over the allowable use 

of secondary gears to subdue HMS 

captured on primary authorized gears. 

The use of these secondary gears might 

result in positive economic benefits 

from anticipated increases in retention 

rates. 

Other alternatives considered in 

addition to No Action were to authorize 

speargun fishing gear in both the 

commercial tuna handgear and 

recreational tuna fisheries, authorizing 

green-stick fishing gear, and authorizing 

buoy gear in the commercial swordfish 

handgear fishery with 50 floatation 

devices with no more than 15 hooks or 

gangions attached to each gear. None of 

the non-preferred alternatives would 

have fewer economic impacts than the 

preferred alternatives. The alternative to 

authorize speargun fishing gear in both 

the commercial tuna handgear and 

recreational tuna fisheries was not 

selected because it could result in some 

additional effort from commercial 

handgear tuna fishing and potentially 

impact BFT stocks. Green-stick gear was 

not preferred because of a lack of data 

from established monitoring programs 

to determine the ecological impacts of 

formally introducing this gear and the 

potential for increases in fishing effort 

and landings on YFT and other HMS. 

Finally, the alternative authorizing buoy 

gear in the commercial swordfish 

handgear fishery with 50 floatation 

devices and no more than 15 hooks or 

gangions attached was expected to have 

additional negative ecological impacts 

compared to the preferred alternative. 

I. Regulatory Housekeeping Measures 

The final measures for regulatory 

housekeeping items were designed to 

minimize economic impacts, while also 

clarifying regulatory definitions and 

requirements, facilitating species 

identification, and enhancing regulatory 

compliance. The final measure that will 

differentiate between BLL and PLL gear 

by using the species composition of 

catch landed will more clearly define 

the difference between BLL and PLL 

gear using performance standards based 

on the composition of catch landed. 

This will help to clarify the difference 

between these two gear types and 

enhance compliance with time/area 

closures that place restrictions on these 

two gear types. There could be some, 

but likely limited, economic impacts to 

vessels that may currently fish in gear 

restricted time/areas closures that do 

not conform to the BLL and PLL 

performance standards. This 

performance based standard could 

adversely impact those longline vessels 

that regularly target both demersal and 

pelagic species on the same trip, and 

that fish in PLL or BLL closed areas. 

Other alternatives considered in 

addition to the No Action alternative 

were to specify maximum and 

minimum number of floats for BLL and 

PLL gear, require time/depth recorders 

on all HMS longlines, and base closures 

on all longline vessels. Only the No 

Action alternative could have less 

onerous economic impacts relative to 

the preferred alternative. However, the 

No Action alternative would not address 

the Agency’s concerns with 

differentiating between bottom and 

pelagic longline gear. The Agency did 

not prefer the alternative that would 

specify a maximum and minimum 

allowable number of commercial fishing 

floats to distinguish between BLL and 

PLL fishing gear because floats are not 

easily defined and the alternative may 

be impracticable to enforce. The float 

requirement could also result in 

unnecessary burden that could diminish 

the flexibility of vessel operators to 

participate in different fishing activities, 

depending on the circumstances. 

Requiring the use of time/depth 

recorders was not preferred because 

they could cost vessels between $1,400 

and $6,600 to acquire and the reduced 

efficiencies associated with their use 

could cause increases in the mortality of 

discarded fish. The Agency did not 

select the alternative that based HMS 

time/area closures on all longline 

vessels since it would have significant 

economic impacts. 

The final measure for shark 

identification, which will require that 

the second dorsal fin and anal fin 

remain attached on all sharks, addresses 

issues associated with shark species 

identification, but will be flexible 

enough to allow fishermen to remove 

the most valuable fins in order to 

minimize the economic impacts of this 


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alternative. Fishermen could 

experience, in the short-term, some 

adverse economic impacts associated 

with lower revenues associated with 

keeping the second dorsal and anal fins 

on sharks. Other alternatives considered 

in addition to the No Action alternative 

were to require the dorsal and anal fin 

on all sharks except lemon and nurse 

sharks and to require that all fins on all 

sharks be retained. The No Action 

alternative and the alternative requiring 

the dorsal and anal fin on all sharks 

except lemon and nurse sharks could 

have fewer economic impacts relative to 

the preferred alternative. These 

alternatives, however, would not satisfy 

enforcement and species identification 

needs, such as improving the accuracy 

of dealer reporting of sharks landed by 

species needed for accurate stock 

assessments and quota monitoring, and 

enabling enforcement officers to identify 

when fishermen illegally keep fins from 

species that are different from those 

they land or species that cannot be 

landed. Furthermore, requiring all fins 

to remain on all sharks through landing 

would result in the largest economic 

burden of any of the alternatives since 

the current offloading process and the 

transition of fish between dealers and 

fishermen is dependent on fins being 

removed from the shark before the 

sharks are offloaded. 

The final measures that will prohibit 

the purchase or sale of HMS from 

vessels in excess of retention limits will 

enhance compliance with current 

regulations by consolidating the 

requirement for both vessels and 

dealers. These measures will have 

minimal economic impact on dealers 

and vessels following the current 

retention limits. The only additional 

alternative considered was No Action, 

which would have less economic 

impact than the preferred alternatives 

but would not satisfy the enforcement or 

monitoring objectives of eliminating the 

potential for the sale of illegally 

harvested HMS in excess of commercial 

retention limits. 

The final measure to clarify the 

regulations for the East Florida Coast 

closed area will make its outer boundary 

consistent with the outer boundary of 

the EEZ. This measure is not expected 

to have any economic impact since 

fishing activity is likely to be limited in 

this small area. The alternative is to 

retain the current technical error under 

the No Action alternative, which results 

in confusion. 

The measure to clarify the definition 

of ‘‘handline gear’’ by requiring that 

they remained attached to, or in contact 

with, a vessel is expected to have only 

minimal economic impacts, since 

unattached handline gear would be 

defined as ‘‘buoy gear’’ and authorized 

exclusively for use in the directed 

commercial swordfish fishery. Other 

alternatives considered were No Action 

and to require handlines be attached to 

recreational vessels only. These two 

alternatives could have fewer economic 

impacts relative to the selected 

alternative, but they would not meet the 

ecological objectives of the final 

Consolidated HMS FMP of limiting the 

potential future expansion of the 

handline sector and possibly reducing 

the amount of gear lost. 

The final measure prohibiting 

commercial vessels from retaining 

billfish will not have any economic 

impacts because current regulations do 

not allow these vessels to sell billfish 

that are landed. This alternative will 

clarify and consolidate the requirements 

for commercial vessels to make them 

consistent with the regulations 

prohibiting vessels with pelagic longline 

gear from retaining billfish. The only 

other alternative considered was No 

Action, which could have less social 

impacts than the selected alternative but 

it would not satisfy ecological needs of 

rebuilding billfish stocks because there 

is potential that commercial fishermen 

could retain billfish for their own 

personal use under the No Action 

alternative. 

The final measure that will allow 

Atlantic tuna dealers the flexibility to 

submit reports using the Internet, once 

this option is available, will potentially 

simplify reporting and reduce costs. The 

other alternatives considered were No 

Action and requiring BFT dealers to 

report online (with specific exceptions). 

These alternatives would not result in 

less economic burden than the final rule 

because it would provide dealers with 

the option of a more efficient data 

reporting option that might better fit 

with their operations. 

The final measures requiring and 

specifying submission dates of no 

fishing, cost-earnings, and annual 

expenditures reporting forms will 

clarify current regulations and 

potentially enhance compliance. The 

other alternative considered was No 

Action; that alternative would not meet 

the NMFS’ objectives to collect quality 

data to manage the fishery because 

fishermen were not providing complete 

and accurate data. Neither alternative is 

expected to have any economic impacts. 

The final measure that will require 

vessel owners, or their designee, to 

report non-tournament recreational 

landings will clarify and simplify the 

reporting process by codifying the 

current prevalent practice of 

recreational landings being reported by 

vessel owners versus individual anglers. 

The other alternative considered, No 

Action, might result in less economic 

burden to small businesses but would 

not satisfy the goal of improving 

reporting or other objectives of the 

Consolidated HMS FMP because NMFS 

suspects that individual recreational 

fishermen may not properly report 

landings. 

The final measures will include a 

provision to conduct additional 

discussions at ICCAT regarding the 

long-term implications of allowing 

unused BFT quota from the previous 

year being added to the subsequent 

year’s allocation. Depending on the 

results of these discussions, the 

regulations and operational procedures 

may need to be further amended in the 

future. In the interim, NMFS would 

maintain the current regulatory text, but 

would amend the practice of allowing 

under/overharvest of the set-aside 

allocation to be rolled into, or deducted 

from, the subsequent fishing year’s setaside allocation. Other alternatives 

considered include No Action and 

amending the regulatory text to clarify 

that rollover provisions would apply to 

this set-aside quota. Accumulation of 

incidental quota under a rollover 

provision could possibly provide an 

incentive to target BFT with longline 

gear, and thus this alternative would not 

fully reflect the intent of the 2002 

ICCAT BFT quota recommendation. 

Finally, the final measure that will 

require recreational vessels with a 

Federal permit to comply with Federal 

regulations regardless of where they are 

fishing, would standardize compliance 

with HMS regulations for vessels 

possessing a Federal HMS permit. This 

will likely simplify compliance with 

regulations, except in cases where a 

state has more restrictive regulations. 

The other alternative considered was No 

Action, which could have marginally 

less economic impact than the preferred 

alternative, but it would not simplify 

and enhance compliance with HMS 

recreational fishing regulations. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. Copies of the 


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compliance guide for this final rule is 

available (see ADDRESSES). 

List of Subjects 

50 CFR Part 300 

Fisheries, Foreign relations, Reporting 

and recordkeeping requirements, 

Treaties. 

50 CFR Part 600 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Penalties, Reporting 

and recordkeeping requirements. 

50 CFR Part 635 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Imports, Penalties, 

Reporting and recordkeeping 

requirements, Treaties. 

Dated: September 22, 2006. 

William T. Hogarth, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, NMFS amends 50 CFR 

chapters III and VI as follows: 

CHAPTER III—INTERNATIONAL FISHING 

AND RELATED ACTIVITIES 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

Subpart M—International Trade 

Documentation and Tracking 

Programs for Highly Migratory Species 

■ 1. The authority citation for subpart M 

continues to read as follows: 

Authority: 16 U.S.C. 951–961 and 971 et 

seq.; 16 U.S.C. 1801 et seq. 

■ 2. In § 300.182, paragraph (d) is 

revised to read as follows: 

§ 300.182 HMS international trade permit. 

* * * * * 

(d) Duration. Any permit issued 

under this section is valid for the period 

specified on it, unless suspended or 

revoked. 

* * * * * 

■ 3. In § 300.185, paragraphs (b)(3) and 

(c)(3) are revised to read as follows: 

§ 300.185 Documentation, reporting and 

recordkeeping requirements for statistical 

documents and re-export certificates. 

* * * * * 

(b) * * * 

(3) Reporting requirements. A permit 

holder must ensure that the original 

statistical document, as completed 

under paragraph (b)(2) of this section, 

accompanies the export of such 

products to their export destination. A 

copy of the statistical document must be 

postmarked and mailed by said permit 

holder to NMFS, at an address 

designated by NMFS, within 24 hours of 

the time the fish product was exported 

from the U.S. or a U.S. insular 

possession. Once a system is available, 

permit holders will also be able to 

submit the forms electronically via the 

Internet. 

(c) * * * 

(3) Reporting requirements. For each 

re-export, when required under this 

paragraph (c), a permit holder must 

submit the original of the completed reexport certificate and the original or a 

copy of the original statistical document 

completed as specified under paragraph 

(c)(2) of this section, to accompany the 

shipment of such products to their reexport destination. A copy of the 

completed statistical document and reexport certificate, when required under 

this paragraph (c), must be postmarked 

and mailed by said permit holder to 

NMFS, at an address designated by 

NMFS, within 24 hours of the time the 

shipment was re-exported from the U.S. 

Once a system is available, permit 

holders will also be able to submit the 

forms electronically via the Internet. 

* * * * * 

CHAPTER VI—FISHERY CONSERVATION 

AND MANAGEMENT, NATIONAL OCEANIC 

AND ATMOSPHERIC ADMINISTRATION, 

DEPARTMENT OF COMMERCE 

PART 600—MAGNUSON-STEVENS 

ACT PROVISIONS 

■ 4. The authority citation for part 600 

continues to read as follows: 

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 

et seq. 

■ 5. Section 600.725, paragraph (v), 

heading ‘‘IX. Secretary of Commerce’’, is 

amended by: 

A. Redesignating entries 1.B. through 

1.J. as entries 1.C. through 1.K., 

respectively. 

B. Redesignating entry 2. as entry 1.L. 

and entry 3. as entry 2., respectively. 

C. Adding entry 1.B. 

D. Revising entry 1. introductory 

paragraph, entry 1.A, and newly 

redesignated entries 1.I. and 1.L. 

The additions and revisions read as 

follows: 

§ 600.725 General prohibitions. 

* * * * * 

(v) * * * 

Fishery Authorized gear types 

*****

IX. Secretary of Commerce 

1. Atlantic Highly 

Migratory Species 

Fisheries (FMP): 

A. Swordfish 

handgear fishery.

A. Rod and reel, harpoon, handline, bandit 

gear, buoy gear. 

Fishery Authorized gear types 

B. Swordfish 

recreational fishery.

B. Rod and reel, 

handline. 

*****

I. Tuna recreational fishery.I. Speargun gear (for 

bigeye, albacore, yellowfin, and skipjack 

tunas only); Rod and 

reel, handline (all tunas). 

*****

L. Atlantic billfish 

recreational fishery.

L. Rod and reel. 

*****

PART 635—ATLANTIC HIGHLY 

MIGRATORY SPECIES 

■ 6. The authority citation for part 635 

continues to read as follows: 

Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 

1801 et seq. 

PART 635 [AMENDED] 

■ 7. In part 635, remove the phrase 

‘‘Northeast Distant closed area’’

wherever it appears and add in its place 

‘‘Northeast Distant gear restricted area’’. 

■ 8. Section 635.2 is amended by: 

A. Revising the definitions of ‘‘East 

Florida Coast closed area’’, ‘‘Fishing 

year’’, ‘‘Handgear’’, ‘‘Handline’’, and 

‘‘Shark’’. 

B. Revising paragraph (5) under the 

definition of ‘‘Management unit’’. 

C. Removing the definition of ‘‘ILAP’’. 

D. Adding definitions, in alphabetical 

order, for ‘‘Atlantic shark identification 

workshop certificate’’, ‘‘BAYS’’, ‘‘Buoy 

gear’’, ‘‘Floatation device’’, ‘‘MadisonSwanson closed area’’, ‘‘Protected 

species safe handling, release, and 

identification workshop certificate’’, 

‘‘Speargun fishing gear’’, and 

‘‘Steamboat Lumps closed area’’. 

The additions and revisions read as 

follows: 

§ 635.2 Definitions. 

* * * * * 

Atlantic shark identification 

workshop certificate means the 

document issued by NMFS, or its 

designee, indicating that the person 

named on the certificate has 

successfully completed the Atlantic 

shark identification workshop. 

* * * * * 

BAYS means Atlantic bigeye, 

albacore, yellowfin, and skipjack tunas 

as defined in § 600.10 of this part. 

* * * * * 

Buoy gear means a fishing gear 

consisting of one or more floatation 

devices supporting a single mainline to 

which no more than two hooks or 

gangions are attached. 

* * * * * 


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East Florida Coast closed area means 

the Atlantic Ocean area seaward of the 

inner boundary of the U.S. EEZ from a 

point intersecting the inner boundary of 

the U.S. EEZ at 31°00′ N. lat. near Jekyll 

Island, GA, and proceeding due east to 

connect by straight lines the following 

coordinates in the order stated: 31°00′ 

N. lat., 78°00′ W. long.; 28°17′10′′ N. lat., 

79°11′24′′ W. long.; then proceeding 

along the outer boundary of the EEZ to 

the intersection of the EEZ with 24°00′ 

N. lat.; then proceeding due west to 

24°00′ N. lat., 81°47′ W. long.; and then 

proceeding due north to intersect the 

inner boundary of the U.S. EEZ at 81°47′ 

W. long. near Key West, FL. 

* * * * * 

Fishing year means—

(1) For Atlantic tunas and swordfish, 

before January 1, 2008 — June 1 through 

May 31. On or after January 1, 2008 —

January 1 through December 31. 

(2) For Atlantic billfish, On or after 

January 1, 2007 — January 1 through 

December 31. 

(3) For sharks — January 1 through 

December 31. 

* * * * * 

Floatation device means any 

positively buoyant object rigged to be 

attached to a fishing gear. 

* * * * * 

Handgear means handline, harpoon, 

rod and reel, bandit gear, buoy gear, or 

speargun gear. 

Handline means fishing gear that is 

attached to, or in contact with, a vessel; 

that consists of a mainline to which no 

more than two hooks or gangions may 

be attached; and that is released and 

retrieved by hand rather than by 

mechanical means. 

* * * * * 

Madison-Swanson closed area means 

a rectangular-shaped area in the Gulf of 

Mexico bounded by straight lines 

connecting the following coordinates in 

the order stated: 29°17′ N. lat., 85°50′ W. 

long.; 29°17′ N. lat., 85°38′ W. long.; 

29°06′ N. lat., 85°38′ W. long.; 29°06′ N. 

lat., 85°50′ W. long.; and 29°17′ N. lat., 

85°50′ W. long. 

Management unit * * * 

* * * * * 

(5) For sharks, means all fish of the 

species listed in Table 1 of Appendix A 

to this part, in the western north 

Atlantic Ocean, including the Gulf of 

Mexico and the Caribbean Sea. 

* * * * * 

Protected species safe handling, 

release, and identification workshop 

certificate means the document issued 

by NMFS, or its designee, indicating 

that the person named on the certificate 

has successfully completed the Atlantic 

HMS protected species safe handling, 

release, and identification workshop. 

* * * * * 

Shark means one of the oceanic 

species, or a part thereof, listed in Table 

1 of Appendix A to this part. 

* * * * * 

Speargun fishing gear means a 

muscle-powered speargun equipped 

with a trigger mechanism, a spear with 

a tip designed to penetrate and retain 

fish, and terminal gear. Terminal gear 

may include, but is not limited to, 

trailing lines, reels, and floats. The term 

‘‘muscle-powered speargun’’ for the 

purposes of this part means a speargun 

that stores potential energy provided 

from the operator’s muscles, and that 

releases only the amount of energy that 

the operator has provided to it from his 

or her own muscles. Common energy 

storing methods for muscle-powered 

spearguns include compressing air and 

springs, and the stretching of rubber 

bands. 

Steamboat Lumps closed area means 

a rectangular-shaped area in the Gulf of 

Mexico bounded by straight lines 

connecting the following coordinates in 

the order stated: 28°14′ N. lat., 84°48′ W. 

long.; 28°14′ N. lat., 84°37′ W. long.; 

28°03′ N. lat., 84°37′ W. long.; 28°03′ N. 

lat., 84°48′ W. long.; and 28°14′ N. lat., 

84°48′ W. long. 

* * * * * 

■ 9. In § 635.4, paragraphs (a)(10), (c)(2), 

(d)(4), (e)(1), (e)(2), (f)(1), (f)(2), (h)(2), 

(l)(1), (l)(2)(i), (l)(2)(ii)(B), (l)(2)(ii)(C), 

(l)(2)(viii), (l)(2)(ix), (m)(1), and (m)(2) 

are revised to read as follows: 

§ 635.4 Permits and fees. 

* * * * * 

(a) * * * 

(10) Permit condition. An owner of a 

vessel with a valid swordfish, shark, 

HMS Angling, or HMS Charter/ 

Headboat permit issued pursuant to this 

part must agree, as a condition of such 

permit, that the vessel’s HMS fishing, 

catch, and gear are subject to the 

requirements of this part during the 

period of validity of the permit, without 

regard to whether such fishing occurs in 

the U.S. EEZ, or outside the U.S. EEZ, 

and without regard to where such HMS, 

or gear, are possessed, taken, or landed. 

However, when a vessel fishes within 

the waters of a state that has more 

restrictive regulations pertaining to 

HMS, persons aboard the vessel must 

abide by the state’s more restrictive 

regulations. 

* * * * * 

(c) * * * 

(2) A vessel with a valid Atlantic 

Tunas General category permit issued 

under paragraph (d) of this section may 

fish in a recreational HMS fishing 

tournament if the vessel has registered 

for, paid an entry fee to, and is fishing 

under the rules of a tournament that has 

registered with NMFS’ HMS 

Management Division as required under 

§ 635.5(d). When a vessel issued a valid 

Atlantic Tunas General category permit 

is fishing in such a tournament, such 

vessel must comply with HMS Angling 

category regulations, except as provided 

in paragraph (c)(3) of this section. 

* * * * * 

(d) * * * 

(4) A person can obtain a limited 

access Atlantic Tunas Longline category 

permit for a vessel only if the vessel has 

been issued both a limited access permit 

for shark and a limited access permit, 

other than handgear, for swordfish. 

Limited access Atlantic Tunas Longline 

category permits may only be obtained 

through transfer from current owners 

consistent with the provisions under 

paragraph (l)(2) of this section. 

* * * * * 

(e) * * * 

(1) The only valid Federal commercial 

vessel permits for sharks are those that 

have been issued under the limited 

access program consistent with the 

provisions under paragraphs (l) and (m) 

of this section. 

(2) The owner of each vessel used to 

fish for or take Atlantic sharks or on 

which Atlantic sharks are retained, 

possessed with an intention to sell, or 

sold must obtain, in addition to any 

other required permits, only one of two 

types of commercial limited access 

shark permits: Shark directed limited 

access permit or shark incidental 

limited access permit. It is a rebuttable 

presumption that the owner or operator 

of a vessel on which sharks are 

possessed in excess of the recreational 

retention limits intends to sell the 

sharks. 

* * * * * 

(f) * * * 

(1) The owner of each vessel used to 

fish for or take Atlantic swordfish or on 

which Atlantic swordfish are retained, 

possessed with an intention to sell, or 

sold must obtain, in addition to any 

other required permits, only one of three 

types of commercial limited access 

swordfish permits: Swordfish directed 

limited access permit, swordfish 

incidental limited access permit, or 

swordfish handgear limited access 

permit. It is a rebuttable presumption 

that the owner or operator of a vessel on 

which swordfish are possessed in excess 

of the recreational retention limits 

intends to sell the swordfish. 

(2) The only valid commercial Federal 

vessel permits for swordfish are those 


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that have been issued under the limited 

access program consistent with the 

provisions under paragraphs (l) and (m) 

of this section. 

* * * * * 

(h) * * * 

(2) Limited access permits for 

swordfish and shark. See paragraph (l) 

of this section for transfers of LAPs for 

shark and swordfish. See paragraph (m) 

of this section for renewals of LAPs for 

shark and swordfish. 

* * * * * 

(l) * * * 

(1) General. A permit issued under 

this section is not transferable or 

assignable to another vessel or owner or 

dealer; it is valid only for the vessel or 

owner or dealer to whom it is issued. If 

a person acquires a vessel or dealership 

and wants to conduct activities for 

which a permit is required, that person 

must apply for a permit in accordance 

with the provisions of paragraph (h) of 

this section or, if the acquired vessel is 

permitted in either the shark, swordfish, 

or tuna longline fishery, in accordance 

with paragraph (1)(2) of this section. If 

the acquired vessel or dealership is 

currently permitted, an application 

must be accompanied by the original 

permit, by a copy of a signed bill of sale 

or equivalent acquisition papers, and 

the appropriate workshop certificates as 

specified in § 635.8. 

(2) * * * 

(i) Subject to the restrictions on 

upgrading the harvesting capacity of 

permitted vessels in paragraph (l)(2)(ii) 

of this section and to the limitations on 

ownership of permitted vessels in 

paragraph (l)(2)(iii) of this section, an 

owner may transfer a shark or swordfish 

LAP or an Atlantic Tunas Longline 

category permit to another vessel that he 

or she owns or to another person. 

Directed handgear LAPs for swordfish 

may be transferred to another vessel but 

only for use with handgear and subject 

to the upgrading restrictions in 

paragraph (l)(2)(ii) of this section and 

the limitations on ownership of 

permitted vessels in paragraph (l)(2)(iii) 

of this section. Incidental catch LAPs 

are not subject to the requirements 

specified in paragraphs (l)(2)(ii) and 

(l)(2)(iii) of this section. 

(ii) * * * 

(B) Subsequent to the issuance of a 

limited access permit, the vessel’s 

horsepower may be increased only once, 

relative to the baseline specifications of 

the vessel initially issued the LAP, 

whether through refitting, replacement, 

or transfer. Such an increase may not 

exceed 20 percent of the baseline 

specifications of the vessel initially 

issued the LAP. 

(C) Subsequent to the issuance of a 

limited access permit, the vessel’s 

length overall, gross registered tonnage, 

and net tonnage may be increased only 

once, relative to the baseline 

specifications of the vessel initially 

issued the LAP, whether through 

refitting, replacement, or transfer. An 

increase in any of these three 

specifications of vessel size may not 

exceed 10 percent of the baseline 

specifications of the vessel initially 

issued the LAP. If any of these three 

specifications is increased, any increase 

in the other two must be performed at 

the same time. This type of upgrade may 

be done separately from an engine 

horsepower upgrade. 

* * * * * 

(viii) As specified in paragraph (f)(4) 

of this section, a directed or incidental 

LAP for swordfish, a directed or an 

incidental catch LAP for shark, and an 

Atlantic Tunas Longline category permit 

are required to retain swordfish for 

commercial purposes. Accordingly, a 

LAP for swordfish obtained by transfer 

without either a directed or incidental 

catch shark LAP or an Atlantic tunas 

Longline category permit will not entitle 

an owner or operator to use a vessel to 

fish in the swordfish fishery. 

(ix) As specified in paragraph (d)(4) of 

this section, a directed or incidental 

LAP for swordfish, a directed or an 

incidental catch LAP for shark, and an 

Atlantic Tunas Longline category permit 

are required to retain Atlantic tunas 

taken by pelagic longline gear. 

Accordingly, an Atlantic Tunas 

Longline category permit obtained by 

transfer without either a directed or 

incidental catch swordfish or shark LAP 

will not entitle an owner or operator to 

use the permitted vessel to fish in the 

Atlantic tunas fishery with pelagic 

longline gear. 

(m) * * * 

(1) General. Persons must apply 

annually for a dealer permit for Atlantic 

tunas, sharks, and swordfish, and for an 

Atlantic HMS Angling, HMS Charter/ 

Headboat, tunas, shark, or swordfish 

vessel permit. Except as specified in the 

instructions for automated renewals, 

persons must submit a renewal 

application to NMFS, along with a copy 

of the applicable valid workshop 

certificate or certificates, if required 

pursuant to § 635.8, at an address 

designated by NMFS, at least 30 days 

before a permit’s expiration to avoid a 

lapse of permitted status. NMFS will 

renew a permit if the specific 

requirements for the requested permit 

are met, including those described in 

paragraph(l)(2) of this section, all 

reports required under the MagnusonStevens Act and ATCA have been 

submitted, including those described in 

§ 635.5 and § 300.185 of this title, the 

applicant is not subject to a permit 

sanction or denial under paragraph 

(a)(6) of this section, and the workshop 

requirements specified in § 635.8 are 

met. 

(2) Shark, swordfish, and tuna 

longline LAPs. The owner of a vessel of 

the U.S. that fishes for, possesses, lands 

or sells shark or swordfish from the 

management unit, takes or possesses 

such shark or swordfish as incidental 

catch, or that fishes for Atlantic tunas 

with longline gear must have the 

applicable limited access permit(s) 

issued pursuant to the requirements in 

paragraphs (e) and (f) of this section. 

Only persons holding a non-expired 

limited access permit(s) in the 

preceding year are eligible to renew a 

limited access permit(s). Transferors 

may not renew limited access permits 

that have been transferred according to 

the procedures of paragraph (l) of this 

section. 

■ 10. In § 635.5, paragraph (a)(4) is 

removed; paragraphs (a)(5) and (a)(6) are 

redesignated as paragraphs (a)(4) and 

(a)(5), respectively; and paragraphs 

(a)(1), (b)(2)(i)(A), (b)(2)(i)(B), (b)(3), 

(c)(2) and (d) are revised to read as 

follows: 

§ 635.5 Recordkeeping and reporting. 

* * * * * 

(a) * * * 

(1) Logbooks. If an owner of an HMS 

charter/headboat vessel, an Atlantic 

tunas vessel, a shark vessel, or a 

swordfish vessel, for which a permit has 

been issued under § 635.4(b), (d), (e), or 

(f), is selected for logbook reporting in 

writing by NMFS, he or she must 

maintain and submit a fishing record on 

a logbook form specified by NMFS. 

Entries are required regarding the 

vessel’s fishing effort and the number of 

fish landed and discarded. Entries on a 

day’s fishing activities must be entered 

on the logbook form within 48 hours of 

completing that day’s activities or before 

offloading, whichever is sooner. The 

owner or operator of the vessel must 

submit the logbook form(s) postmarked 

within 7 days of offloading all Atlantic 

HMS. If no fishing occurred during a 

calendar month, a no-fishing form so 

stating must be submitted postmarked 

no later than 7 days after the end of that 

month. If an owner of an HMS charter/ 

headboat vessel, Atlantic tunas vessel, 

shark vessel, or swordfish vessel, 

permitted under § 635.4(b), (d), (e), or 

(f), is selected in writing by NMFS to 

complete the cost-earnings portion of 

the logbook(s), the owner or operator 

must maintain and submit the costVerDate Aug<31>2005 18:21 Sep 29, 2006 Jkt 208001 PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 E:\FR\FM\02OCR2.SGM 02OCR2

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earnings portion of the logbook 

postmarked no later than 30 days after 

completing the offloading for each trip 

fishing for Atlantic HMS during that 

calendar year, and submit the Atlantic 

Highly Migratory Species Annual 

Expenditures form(s) postmarked no 

later than the date specified on the form 

of the following year. 

* * * * * 

(b) * * * 

(2) * * * 

(i) * * * 

(A) Landing reports. Each dealer with 

a valid Atlantic tunas permit issued 

under § 635.4 must submit a completed 

landing report on a form available from 

NMFS for each BFT received from a 

U.S. fishing vessel. Such report must be 

submitted by electronic facsimile (fax) 

or, once available, via the Internet, to a 

number or a web address designated by 

NMFS not later than 24 hours after 

receipt of the BFT. A landing report 

must indicate the name and permit 

number of the vessel that landed the 

BFT and must be signed by the 

permitted vessel’s owner or operator 

immediately upon transfer of the BFT. 

The dealer must inspect the vessel’s 

permit to verify that the required vessel 

name and vessel permit number as 

listed on the permit are correctly 

recorded on the landing report and to 

verify that the vessel permit has not 

expired. 

(B) Bi-weekly reports. Each dealer 

with a valid Atlantic tunas permit 

issued under § 635.4 must submit a biweekly report on forms available from 

NMFS for BFT received from U.S. 

vessels. For BFT received from U.S. 

vessels on the 1st through the 15th of 

each month, the dealer must submit the 

bi-weekly report form to NMFS 

postmarked or, once available, 

electronically submitted via the Internet 

not later than the 25th of that month. 

Reports of BFT received on the 16th 

through the last day of each month must 

be postmarked or, once available, 

electronically submitted via the Internet 

not later than the 10th of the following 

month. 

* * * * * 

(3) Recordkeeping. Dealers must 

retain at their place of business a copy 

of each report required under 

paragraphs (b)(1)(i), (b)(1)(ii), and 

(b)(2)(i) of this section for a period of 2 

years from the date on which each 

report was required to be submitted. 

(c) * * * 

(2) Billfish and North Atlantic 

swordfish. The owner, or the owner’s 

designee, of a vessel permitted, or 

required to be permitted, in the Atlantic 

HMS Angling or Atlantic HMS Charter/ 

Headboat category must report all nontournament landings of Atlantic blue 

marlin, Atlantic white marlin, and 

Atlantic sailfish, and all nontournament and non-commercial 

landings of North Atlantic swordfish to 

NMFS by calling a number designated 

by NMFS within 24 hours of the 

landing. For telephone reports, the 

owner, or the owners designee, must 

provide a contact phone number so that 

a NMFS designee can call the vessel 

owner, or the owner’s designee, for 

follow up questions and to confirm the 

reported landing. The telephone landing 

report has not been completed unless 

the vessel owner, or the owner’s 

designee, has received a confirmation 

number from a NMFS designee. 

* * * * * 

(d) Tournament operators. For all 

tournaments that are conducted from a 

port in an Atlantic coastal state, 

including the U.S. Virgin Islands and 

Puerto Rico, a tournament operator must 

register with the NMFS’ HMS 

Management Division, at least 4 weeks 

prior to commencement of the 

tournament by submitting information 

on the purpose, dates, and location of 

the tournament to NMFS. A tournament 

is not registered unless the tournament 

operator has received a confirmation 

number from the NMFS’ HMS 

Management Division. NMFS will notify 

the tournament operator in writing 

when a tournament has been selected 

for reporting. Tournament operators that 

are selected to report must maintain and 

submit to NMFS a record of catch and 

effort on forms available from NMFS. 

Tournament operators must submit the 

completed forms to NMFS, at an address 

designated by NMFS, postmarked no 

later than the 7th day after the 

conclusion of the tournament, and must 

attach a copy of the tournament rules. 

* * * * * 

■ 11. In § 635.6, paragraphs (c)(1) and 

(c)(2) are revised to read as follows: 

§ 635.6 Vessel and gear identification. 

* * * * * 

(c) * * * 

(1) The owner or operator of a vessel 

for which a permit has been issued 

under § 635.4 and that uses handline, 

buoy gear, harpoon, longline, or gillnet, 

must display the vessel’s name, 

registration number or Atlantic Tunas, 

HMS Angling, or HMS Charter/ 

Headboat permit number on each float 

attached to a handline, buoy gear, or 

harpoon, and on the terminal floats and 

high-flyers (if applicable) on a longline 

or gillnet used by the vessel. The 

vessel’s name or number must be at 

least 1 inch (2.5 cm) in height in block 

letters or arabic numerals in a color that 

contrasts with the background color of 

the float or high-flyer. 

(2) An unmarked handline, buoy gear, 

harpoon, longline, or gillnet, is illegal 

and may be disposed of in an 

appropriate manner by NMFS or an 

authorized officer. 

* * * * * 

■ 12. Add § 635.8 under subpart A to 

read as follows: 

§ 635.8 Workshops. 

(a) Protected species release, 

disentanglement, and identification 

workshops. (1) Both the owner and 

operator of a vessel that fishes with 

longline or gillnet gear must be certified 

by NMFS, or its designee, as having 

completed a workshop on the safe 

handling, release, and identification of 

protected species before a shark or 

swordfish limited access vessel permit, 

pursuant to § 635.4(e) and (f), is 

renewed in 2007. For the purposes of 

this section, it is a rebuttable 

presumption that a vessel fishes with 

longline or gillnet gear if: longline or 

gillnet gear is onboard the vessel; 

logbook reports indicate that longline or 

gillnet gear was used on at least one trip 

in the preceding year; or, in the case of 

a permit transfer to new owners that 

occurred less than a year ago, logbook 

reports indicate that longline or gillnet 

gear was used on at least one trip since 

the permit transfer. 

(2) NMFS, or its designee, will issue 

a protected species safe handling, 

release, and identification workshop 

certificate to any person who completes 

a protected species safe handling, 

release, and identification workshop. If 

an owner owns multiple vessels, NMFS 

will issue a certificate for each vessel 

that the owner owns upon successful 

completion of one workshop. An owner 

who is also an operator will be issued 

multiple certificates, one as the owner 

of the vessel and one as the operator. 

(3) The owner of a vessel that fishes 

with longline or gillnet gear, as 

specified in paragraph (a)(1) of this 

section, is required to possess on board 

the vessel a valid protected species safe 

handling, release, and identification 

workshop certificate issued to that 

vessel owner. A copy of a valid 

protected species safe handling, release, 

and identification workshop certificate 

issued to the vessel owner for a vessel 

that fishes with longline or gillnet gear 

must be included in the application 

package to renew or obtain a shark or 

swordfish limited access permit. 

(4) An operator that fishes with 

longline or gillnet gear as specified in 

paragraph (a)(1) of this section must 


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possess on board the vessel a valid 

protected species safe handling, release, 

and identification workshop certificate 

issued to that operator, in addition to a 

certificate issued to the vessel owner. 

(5) All owners and operators that 

attended and successfully completed 

industry certification workshops, held 

on April 8, 2005, in Orlando, FL, and on 

June 27, 2005, in New Orleans, LA, as 

documented by workshop facilitators, 

will automatically receive valid 

protected species safe handling, release, 

and identification workshop certificates 

issued by NMFS no later than December 

31, 2006. 

(b) Atlantic shark identification 

workshops. (1) As of December 31, 2007, 

all Federal Atlantic shark dealers 

permitted or required to be permitted 

pursuant to § 635.4(g)(2), or a proxy for 

each place of business as specified in 

paragraph (b)(4) of this section, must be 

certified by NMFS, or its designee, as 

having completed an Atlantic shark 

identification workshop. 

(2) NMFS, or its designee, will issue 

an Atlantic shark identification 

workshop certificate to any person who 

completes an Atlantic shark 

identification workshop. 

(3) Dealers who own multiple 

businesses and who attend and 

successfully complete the workshop 

will be issued a certificate for each place 

of business that is permitted to receive 

sharks pursuant to § 635.4(g)(2). 

(4) Dealers may send a proxy to the 

Atlantic shark identification workshops. 

If a dealer opts to send a proxy, the 

dealer must designate a proxy from each 

place of business covered by the dealer’s 

permit issued pursuant to § 635.4(g)(2). 

The proxy must be a person who is 

currently employed by a place of 

business covered by the dealer’s permit; 

is a primary participant in the 

identification, weighing, and/or first 

receipt of fish as they are offloaded from 

a vessel; and fills out dealer reports as 

required under § 635.5. Only one 

certificate will be issued to each proxy. 

If a proxy is no longer employed by a 

place of business covered by the dealer’s 

permit, the dealer or another proxy must 

be certified as having completed a 

workshop pursuant to this section. At 

least one individual from each place of 

business covered by the shark dealer 

permit must possess a valid Atlantic 

shark identification workshop 

certificate. 

(5) A Federal Atlantic shark dealer 

issued or required to be issued a shark 

dealer permit pursuant to § 635.4(g)(2) 

must possess and make available for 

inspection a valid Atlantic shark 

identification workshop certificate at 

each place of business. A copy of this 

certificate issued to the dealer or proxy 

must be included in the dealer’s 

application package to obtain or renew 

a shark dealer permit. If multiple 

businesses are authorized to receive 

sharks under the dealer’s permit, a copy 

of the workshop certificate for each 

business must be included in the shark 

dealer permit renewal application 

package. 

(c) Terms and conditions. (1) 

Certificates, as described in paragraphs 

(a) and (b) of this section, are valid for 

three calendar years. All certificates 

must be renewed prior to the expiration 

date on the certificate. 

(2) If a vessel fishes with longline or 

gillnet gear as described in paragraph (a) 

of this section, the vessel owner may not 

renew a shark or swordfish limited 

access permit, issued pursuant to 

§ 635.4(e) or (f), without submitting a 

valid protected species workshop 

certificate with the permit renewal 

application. 

(3) A vessel that fishes with longline 

or gillnet gear as described in paragraph 

(a) of this section and that has been, or 

should be, issued a valid limited access 

permit pursuant to § 635.4(e) or (f), may 

not fish unless a valid protected species 

safe handling, release, and identification 

workshop certificate has been issued to 

both the owner and operator of that 

vessel. 

(4) An Atlantic shark dealer may not 

receive, purchase, trade, or barter for 

Atlantic shark unless a valid Atlantic 

shark identification workshop certificate 

is on the premises of each business 

listed under the shark dealer permit. An 

Atlantic shark dealer may not renew a 

Federal dealer permit issued pursuant to 

§ 635.4(g)(2) unless a valid Atlantic 

shark identification workshop certificate 

has been submitted with permit renewal 

application. If the dealer is not certified, 

the dealer must submit a copy of a 

proxy certificate for each place of 

business listed on the shark dealer 

permit. 

(5) A vessel owner, operator, shark 

dealer, or proxy for a shark dealer who 

is issued either a protected species 

workshop certificate or an Atlantic HMS 

identification workshop certificate may 

not transfer that certificate to another 

person. 

(6) Vessel owners issued a valid 

protected species safe handling, release, 

and identification workshop certificate 

may request, in the application for 

permit transfer per § 635.4(l)(2), 

additional protected species safe 

handling, release, and identification 

workshop certificates for additional 

vessels that they own. Shark dealers 

may request from NMFS additional 

Atlantic shark identification workshop 

certificates for additional places of 

business authorized to receive sharks 

that they own as long as they, and not 

a proxy, were issued the certificate. All 

certificates must be renewed prior to the 

date of expiration on the certificate. 

(7) To receive either the protected 

species safe handling, release, and 

identification workshop certificate or 

Atlantic shark identification workshop 

certificate, persons required to attend 

the workshop must show a copy of their 

HMS permit, as well as proof of 

identification to NMFS or NMFS’

designee at the workshop. If a permit 

holder is a corporation, partnership, 

association, or any other entity, the 

individual attending on behalf of the 

permit holder must show proof that he 

or she is the permit holder’s agent and 

a copy of the HMS permit to NMFS or 

NMFS’ designee at the workshop. For 

proxies attending on behalf of a shark 

dealer, the proxy must have 

documentation from the shark dealer 

acknowledging that the proxy is 

attending the workshop on behalf of the 

Atlantic shark dealer and must show a 

copy of the Atlantic shark dealer permit 

to NMFS or NMFS’ designee at the 

workshop. 

■ 13. In § 635.20, paragraph (d)(4) is 

added to read as follows: 

§ 635.20 Size limits. 

* * * * * 

(d) * * * 

(4) The Atlantic blue and white 

marlin minimum size limits, specified 

in paragraphs (d)(1) and (d)(2) of this 

section, may be adjusted to sizes 

between 117 and 138 inches (297.2 and 

350.5 cm) and 70 and 79 inches (177.8 

and 200.7 cm), respectively, to achieve, 

but not exceed, the annual Atlantic 

marlin landing limit specified in 

§ 635.27(d). Minimum size limit 

increases will be based upon a review 

of landings, the period of time 

remaining in the current fishing year, 

current and historical landing trends, 

and any other relevant factors. NMFS 

will adjust the minimum size limits 

specified in this section by filing an 

adjustment with the Office of the 

Federal Register for publication. In no 

case shall the adjustments be effective 

less than 14 calendar days after the date 

of publication. The adjusted minimum 

size limits will remain in effect through 

the end of the applicable fishing year or 

until otherwise adjusted. 

* * * * * 

■ 14. In § 635.21, paragraphs (a)(2), 

(a)(4), (b), (c)(1), (c)(2)(ii), (c)(2)(iii), 

(c)(2)(iv), (c)(2)(v) introductory text, 

(e)(1) introductory text, (e)(1)(i), 

(e)(1)(ii), (e)(1)(iii), (e)(2)(i), (e)(2)(ii), 


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and (e)(4)(iii) are revised; and 

paragraphs (d)(4), (e)(2)(iii), and (f) are 

added to read as follows: 

§ 635.21 Gear operation and deployment 

restrictions. 

(a) * * * 

(2) If a billfish is caught by a hook and 

not retained, the fish must be released 

by cutting the line near the hook or by 

using a dehooking device, in either case 

without removing the fish from the 

water. 

* * * * * 

(4) Area closures for all Atlantic HMS 

fishing gears. (i) No person may fish for, 

catch, possess, or retain any Atlantic 

highly migratory species or anchor a 

fishing vessel that has been issued a 

permit or is required to be permitted 

under this part, in the areas designated 

at § 622.34(d) of this chapter. 

(ii) From November through April of 

each year until June 16, 2010, no vessel 

issued, or required to be issued, a 

permit under this part may fish or 

deploy any type of fishing gear in the 

Madison-Swanson closed area or the 

Steamboat Lumps closed area, as 

defined in § 635.2. 

(iii) From May through October of 

each year until June 16, 2010, no vessel 

issued, or required to be issued, a 

permit under this part may fish or 

deploy any type of fishing gear in the 

Madison-Swanson or the Steamboat 

Lumps closed areas except for surface 

trolling, as specified below under 

paragraph (a)(4)(iv) of this section. 

(iv) For the purposes of paragraph 

(a)(4)(iii) of this section, surface trolling 

is defined as fishing with lines trailing 

behind a vessel which is in constant 

motion at speeds in excess of four knots 

with a visible wake. Such trolling may 

not involve the use of down riggers, 

wire lines, planers, or similar devices. 

(b) General. No person may fish for, 

catch, possess, or retain any Atlantic 

HMS with gears other than the primary 

gears specifically authorized in this 

part. Consistent with paragraphs (a)(1) 

and (a)(2) of this section, secondary 

gears may be used at boat side to aid 

and assist in subduing, or bringing on 

board a vessel, Atlantic HMS that have 

first been caught or captured using 

primary gears. For purposes of this part, 

secondary gears include, but are not 

limited to, dart harpoons, gaffs, flying 

gaffs, tail ropes, etc. Secondary gears 

may not be used to capture, or attempt 

to capture, free-swimming or undersized 

HMS. Except as specified in this 

paragraph (b), a vessel using or having 

onboard in the Atlantic Ocean any 

unauthorized gear may not possess an 

Atlantic HMS on board. 

(c) * * * 

(1) If a vessel issued or required to be 

issued a permit under this part is in a 

closed area designated under paragraph 

(c)(2) of this section and has bottom 

longline gear onboard, the vessel may 

not, at any time, possess or land any 

pelagic species listed in Table 2 of 

Appendix A to this part in excess of 5 

percent, by weight, of the total weight 

of pelagic and demersal species 

possessed or landed, that are listed in 

Tables 2 and 3 of Appendix A to this 

part. 

(2) * * * 

(ii) In the Charleston Bump closed 

area from February 1 through April 30 

each calendar year; 

(iii) In the East Florida Coast closed 

area at any time; 

(iv) In the Desoto Canyon closed area 

at any time; 

(v) In the Northeast Distant gear 

restricted area at any time, unless 

persons onboard the vessel comply with 

the following: 

* * * * * 

(d) * * * 

(4) If a vessel issued or required to be 

issued a permit under this part is in a 

closed area designated under paragraph 

(d)(1) of this section and has pelagic 

longline gear onboard, the vessel may 

not, at any time, possess or land any 

demersal species listed in Table 3 of 

Appendix A to this part in excess of 5 

percent, by weight, of the total weight 

of pelagic and demersal species 

possessed or landed, that are listed in 

Tables 2 and 3 of Appendix A to this 

part. 

(e) * * * 

(1) Atlantic tunas. A person that 

fishes for, retains, or possesses an 

Atlantic bluefin tuna may not have on 

board a vessel or use on board a vessel 

any primary gear other than those 

authorized for the category for which 

the Atlantic tunas or HMS permit has 

been issued for such vessel. Primary 

gears are the gears specifically 

authorized in this section. When fishing 

for Atlantic tunas other than BFT, 

primary gear authorized for any Atlantic 

Tunas permit category may be used, 

except that purse seine gear may be 

used only on board vessels permitted in 

the Purse Seine category and pelagic 

longline gear may be used only on board 

vessels issued an Atlantic Tunas 

Longline category tuna permit, a LAP 

other than handgear for swordfish, and 

a LAP for sharks. 

(i) Angling. Speargun (for BAYS tunas 

only), and rod and reel (including 

downriggers)and handline (for all 

tunas). 

(ii) Charter/Headboat. Speargun (for 

recreational BAYS tuna fishery only), 

and rod and reel (including 

downriggers), bandit gear, and handline 

(for all tunas). 

(iii) General. Rod and reel (including 

downriggers), handline, harpoon, and 

bandit gear. 

* * * * * 

(2) * * * 

(i) Only persons who have been 

issued a valid HMS Angling or valid 

Charter/Headboat permit, or who have 

been issued a valid Atlantic Tunas 

General category permit and are 

participating in a tournament as 

provided in § 635.4(c) of this part, may 

possess a blue marlin or white marlin 

in, or take a blue marlin or a white 

marlin from, its management unit. Blue 

marlin or white marlin may only be 

harvested by rod and reel. 

(ii) Only persons who have been 

issued a valid HMS Angling or valid 

Charter/Headboat permit, or who have 

been issued a valid Atlantic Tunas 

General category permit and are 

participating in a tournament as 

provided in § 635.4(c) of this part, may 

possess or take a sailfish shoreward of 

the outer boundary of the Atlantic EEZ. 

Sailfish may only be harvested by rod 

and reel. 

(iii) After December 31, 2006, persons 

who have been issued or are required to 

be issued a permit under this part and 

who are participating in a 

‘‘tournament’’, as defined in § 635.2, 

that bestows points, prizes, or awards 

for Atlantic billfish must deploy only 

non-offset circle hooks when using 

natural bait or natural bait/artificial lure 

combinations, and may not deploy a Jhook or an offset circle hook in 

combination with natural bait or a 

natural bait/artificial lure combination. 

* * * * * 

(4) * * * 

(iii) A person aboard a vessel issued 

or required to be issued a valid directed 

handgear LAP for Atlantic swordfish 

may not fish for swordfish with any gear 

other than handgear. A swordfish will 

be deemed to have been harvested by 

longline when the fish is on board or 

offloaded from a vessel using or having 

on board longline gear. Vessels that 

have been issued or that are required to 

have been issued a valid directed or 

handgear swordfish LAP under this part 

and that are utilizing buoy gear may not 

possess or deploy more than 35 

floatation devices, and may not deploy 

more than 35 individual buoys gears per 

vessel. Buoy gear must be constructed 

and deployed so that the hooks and/or 

gangions are attached to the vertical 

portion of the mainline. Floatation 

devices may be attached to one but not 

both ends of the mainline, and no hooks 


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or gangions may be attached to any 

floatation device or horizontal portion 

of the mainline. If more than one 

floatation device is attached to a buoy 

gear, no hook or gangion may be 

attached to the mainline between them. 

Individual buoy gears may not be 

linked, clipped, or connected together 

in any way. Buoy gears must be released 

and retrieved by hand. All deployed 

buoy gear must have some type of 

monitoring equipment affixed to it 

including, but not limited to, radar 

reflectors, beeper devices, lights, or 

reflective tape. If only reflective tape is 

affixed, the vessel deploying the buoy 

gear must possess an operable spotlight 

capable of illuminating deployed 

floatation devices. If a gear monitoring 

device is positively buoyant and rigged 

to be attached to a fishing gear, it is 

included in the 35 floatation device 

vessel limit and must be marked 

appropriately. 

* * * * * 

(f) Speargun fishing gear. Speargun 

fishing gear may only be utilized when 

recreational fishing for Atlantic BAYS 

tunas and only from vessels issued 

either a valid HMS Angling or valid 

HMS Charter/Headboat permit. Persons 

fishing for Atlantic BAYS tunas using 

speargun gear, as specified in paragraph 

(e)(1) of this section, must be physically 

in the water when the speargun is fired 

or discharged, and may freedive, use 

SCUBA, or other underwater breathing 

devices. Only free-swimming BAYS 

tunas, not those restricted by fishing 

lines or other means, may be taken by 

speargun fishing gear. ‘‘Powerheads’’, as 

defined at § 600.10 of this chapter, or 

any other explosive devices, may not be 

used to harvest or fish for BAYS tunas 

with speargun fishing gear. 

■ 15. In § 635.22, paragraphs (b) and (c) 

are revised to read as follows: 

§ 635.22 Recreational retention limits. 

* * * * * 

(b) Billfish. No longbill spearfish from 

the management unit may be taken, 

retained, or possessed shoreward of the 

outer boundary of the EEZ. 

(c) Sharks. One shark from either the 

large coastal, small coastal, or pelagic 

group may be retained per vessel per 

trip, subject to the size limits described 

in § 635.20(e). In addition, one Atlantic 

sharpnose shark and one bonnethead 

shark may be retained per person per 

trip. Regardless of the length of a trip, 

no more than one Atlantic sharpnose 

shark and one bonnethead shark per 

person may be possessed on board a 

vessel. No prohibited sharks, including 

parts or pieces of prohibited sharks, 

from the management unit, which are 

listed in Table 1 of Appendix A to this 

part under prohibited sharks, may be 

retained. The recreational retention 

limit for sharks applies to any person 

who fishes in any manner, except to 

persons aboard a vessel that has been 

issued an Atlantic shark LAP under 

§ 635.4. If an Atlantic shark quota is 

closed under § 635.28, the recreational 

retention limit for sharks may be 

applied to persons aboard a vessel 

issued an Atlantic shark LAP under 

§ 635.4, only if that vessel has also been 

issued an HMS Charter/Headboat permit 

issued under § 635.4 and is engaged in 

a for-hire fishing trip. 

* * * * * 

■ 16. In § 635.23, paragraphs (a)(4), 

(b)(3), and (f)(3) are revised to read as 

follows: 

§ 635.23 Retention limits for BFT. 

* * * * * 

(a) * * * 

(4) To provide for maximum 

utilization of the quota for BFT, NMFS 

may increase or decrease the daily 

retention limit of large medium and 

giant BFT over a range from zero (on 

RFDs) to a maximum of three per vessel. 

Such increase or decrease will be based 

on the criteria provided under 

§ 635.27(a)(8). NMFS will adjust the 

daily retention limit specified in 

paragraph (a)(2) of this section by filing 

an adjustment with the Office of the 

Federal Register for publication. In no 

case shall such adjustment be effective 

less than 3 calendar days after the date 

of filing with the Office of the Federal 

Register, except that previously 

designated RFDs may be waived 

effective upon closure of the General 

category fishery so that persons aboard 

vessels permitted in the General 

category may conduct tag-and-release 

fishing for BFT under § 635.26. 

(b) * * * 

(3) Changes to retention limits. To 

provide for maximum utilization of the 

quota for BFT over the longest period of 

time, NMFS may increase or decrease 

the retention limit for any size class of 

BFT, or change a vessel trip limit to an 

angler trip limit and vice versa. Such 

increase or decrease in retention limit 

will be based on the criteria provided 

under § 635.27 (a)(8). The retention 

limits may be adjusted separately for 

persons aboard a specific vessel type, 

such as private vessels, headboats, or 

charter boats. NMFS will adjust the 

daily retention limit specified in 

paragraph (b)(2) of this section by filing 

an adjustment with the Office of the 

Federal Register for publication. In no 

case shall such adjustment be effective 

less than 3 calendar days after the date 

of filing with the Office of the Federal 

Register. 

* * * * * 

(f) * * * 

(3) Pelagic longline vessels fishing in 

the Northeast Distant gear restricted 

area, under the exemption specified at 

§ 635.21(c)(2)(v), may retain all BFT 

taken incidental to fishing for other 

species while in that area up to the 

available quota as specified in 

§ 635.27(a), notwithstanding the 

retention limits and target catch 

requirements specified in paragraph 

(f)(1) of this section. Once the available 

quota as specified in § 635.27(a) has 

been attained, the target catch 

requirements specified in paragraph 

(f)(1) of this section apply. 

* * * * * 

■ 17. In § 635.24, paragraphs (a)(1), 

(a)(2), (b)(1), and the first sentence in 

paragraph (b)(2) are revised; and 

paragraph (a)(3) is added to read as 

follows: 

§ 635.24 Commercial retention limits for 

sharks and swordfish. 

* * * * * 

(a) * * * 

(1) A person who owns or operates a 

vessel that has been issued a directed 

LAP for shark may retain, possess or 

land no more than 4,000 lb (1,814 kg) 

dw of LCS per trip. 

(2) A person who owns or operates a 

vessel that has been issued an incidental 

catch LAP for sharks may retain, possess 

or land no more than 5 LCS and 16 SCS 

and pelagic sharks, combined, per trip. 

(3) A person who owns or operates a 

vessel that has been issued an incidental 

or directed LAP for sharks may not 

retain, possess, land, sell, or purchase a 

prohibited shark, including parts or 

pieces of prohibited sharks, which are 

listed in Table 1 of Appendix A to this 

part under prohibited sharks. 

(b) * * * 

(1) Persons aboard a vessel that has 

been issued an incidental LAP for 

swordfish may retain, possess, or land 

no more than two swordfish per trip in 

or from the Atlantic Ocean north of 5° 

N. lat. 

(2) Persons aboard a vessel in the 

squid trawl fishery that has been issued 

an incidental LAP for swordfish may 

retain, possess, or land no more than 

five swordfish per trip in or from the 

Atlantic Ocean north of 5° N. lat. * * * 

■ 18. In § 635.27, paragraphs (a) 

introductory text, (a)(1) introductory 

text, (a)(1)(i), (a)(1)(iii), (a)(2), (a)(2)(i), 

(a)(2)(ii), (a)(2)(iii), (a)(3), (a)(4)(i), 

(a)(4)(iii), (a)(5), (a)(6), (a)(7)(i), (a)(7)(ii), 

(a)(8), (a)(9), (b)(1) introductory text, 

(c)(1)(i)(A), (c)(1)(i)(C), (c)(1)(ii), (c)(2)(i), 


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(c)(2)(iv), and (c)(3) are revised; 

paragraph (a)(7)(iii) is removed; and 

paragraphs (a)(10) and (d) are added to 

read as follows: 

§ 635.27 Quotas. 

(a) BFT. Consistent with ICCAT 

recommendations, NMFS will subtract 

any allowance for dead discards from 

the fishing year’s total U.S. quota for 

BFT that can be caught, and allocate the 

remainder to be retained, possessed, or 

landed by persons and vessels subject to 

U.S. jurisdiction. The total landing 

quota will be divided among the 

General, Angling, Harpoon, Purse Seine, 

Longline, Trap, and Reserve categories. 

Consistent with these allocations and 

other applicable restrictions of this part, 

BFT may be taken by persons aboard 

vessels issued Atlantic Tunas permits, 

HMS Angling permits, or HMS Charter/ 

Headboat permits. The BFT baseline 

annual landings quota is 1,464.6 mt, not 

including an additional annual 25 mt 

allocation provided in paragraph (a)(3) 

of this section. Allocations of this 

baseline annual landings quota will be 

made according to the following 

percentages: General - 47.1 percent 

(689.8 mt); Angling - 19.7 percent (288.6 

mt), which includes the school BFT 

held in reserve as described under 

paragraph (a)(7)(ii) of this section; 

Harpoon - 3.9 percent (57.1 mt); Purse 

Seine - 18.6 percent (272.4 mt); Longline 

- 8.1 percent (118.6 mt), which does not 

include the additional annual 25 mt 

allocation provided in paragraph (a)(3) 

of this section; and Trap - 0.1 percent 

(1.5 mt). The remaining 2.5 percent 

(36.6 mt) of the baseline annual 

landings quota will be held in reserve 

for inseason or annual adjustments 

based on the criteria in paragraph (a)(8) 

of this section. NMFS may apportion a 

landings quota allocated to any category 

to specified fishing periods or to 

geographic areas and will make annual 

adjustments to quotas, as specified in 

paragraph (a)(10) of this section. BFT 

landings quotas are specified in whole 

weight. 

(1) General category landings quota. 

In accordance with the framework 

procedures of the HMS FMP, NMFS will 

publish in the Federal Register, prior to 

the beginning of each fishing year or as 

early as feasible, the General category 

effort control schedule, including daily 

retention limits and restricted-fishing 

days. 

(i) Catches from vessels for which 

General category Atlantic Tunas permits 

have been issued and certain catches 

from vessels for which an HMS Charter/ 

Headboat permit has been issued are 

counted against the General category 

landings quota. See § 635.23(c)(3) 

regarding landings by vessels with an 

HMS Charter/Headboat permit that are 

counted against the baseline General 

category landings quota. The amount of 

large medium and giant BFT that may 

be caught, retained, possessed, landed, 

or sold under the baseline General 

category landings quota is 47.1 percent 

(689.8 mt) of the overall baseline annual 

BFT landings quota, and is apportioned 

as follows: 

(A) June 1 through August 31 - 50 

percent (344.9 mt); 

(B) September 1 through September 

30 - 26.5 percent (182.8 mt); 

(C) October 1 through November 30 - 

13 percent (89.7 mt); 

(D) December 1 through December 31 

- 5.2 percent (35.9 mt); and 

(E) January 1 through January 31 - 5.3 

percent (36.5 mt). 

* * * * * 

(iii) When the coastwide General 

category fishery has been closed in any 

quota period specified under paragraph 

(a)(1)(i) of this section, NMFS will 

publish a closure action as specified in 

§ 635.28. The subsequent time-period 

subquota will automatically open in 

accordance with the dates specified 

under paragraph (a)(1)(i) of this section. 

(2) Angling category landings quota. 

In accordance with the framework 

procedures of the HMS FMP, prior to 

each fishing year or as early as feasible, 

NMFS will establish the Angling 

category daily retention limits. The total 

amount of BFT that may be caught, 

retained, possessed, and landed by 

anglers aboard vessels for which an 

HMS Angling permit or an HMS 

Charter/Headboat permit has been 

issued is 19.7 percent (288.6 mt) of the 

overall annual U.S. BFT baseline 

landings quota. No more than 2.3 

percent (6.6 mt) of the annual Angling 

category landings quota may be large 

medium or giant BFT. In addition, over 

each 4–consecutive-year period (starting 

in 1999, inclusive), no more than 8 

percent of the overall U.S. BFT baseline 

landings quota, inclusive of the 

allocation specified in paragraph (a)(3) 

of this section, may be school BFT. The 

Angling category landings quota 

includes the amount of school BFT held 

in reserve under paragraph (a)(7)(ii) of 

this section. The size class subquotas for 

BFT are further subdivided as follows: 

(i) Under paragraph (a)(7)(ii) of this 

section, 52.8 percent (51.3 mt) of the 

school BFT Angling category landings 

quota, after adjustment for the school 

BFT quota held in reserve, may be 

caught, retained, possessed, or landed 

south of 39°18′ N. lat. The remaining 

quota (45.9 mt) may be caught, retained, 

possessed or landed north of 39°18′ N. 

lat. 

(ii) An amount equal to 52.8 percent 

(86.0 mt) of the large school/small 

medium BFT Angling category quota 

may be caught, retained, possessed, or 

landed south of 39°18′ N. lat. The 

remaining quota (76.8 mt) may be 

caught, retained, possessed or landed 

north of 39°18′ N. lat. 

(iii) An amount equal to 66.7 percent 

(4.4 mt) of the large medium and giant 

BFT Angling category quota may be 

caught, retained, possessed, or landed 

south of 39°18′ N. lat. The remaining 

quota (2.2 mt) may be caught, retained, 

possessed or landed north of 39°18′ N. 

lat. 

(3) Longline category quota. The total 

amount of large medium and giant BFT 

that may be caught incidentally and 

retained, possessed, or landed by 

vessels that possess Longline category 

Atlantic Tunas permits is 8.1 percent 

(118.6 mt) of the overall U.S. BFT quota. 

No more than 60.0 percent of the 

Longline category quota may be 

allocated for landing in the area south 

of 31°00′ N. lat. In addition, 25 mt shall 

be allocated for incidental catch by 

pelagic longline vessels fishing in the 

Northeast Distant gear restricted area as 

specified at § 635.23(f)(3). 

(4) * * * 

(i) The total amount of large medium 

and giant BFT that may be caught, 

retained, possessed, or landed by 

vessels that possess Purse Seine 

category Atlantic Tunas permits is 18.6 

percent (272.4 mt) of the overall U.S. 

BFT baseline landings quota. The 

directed purse seine fishery for BFT 

commences on July 15 of each year 

unless NMFS takes action to delay the 

season start date. Based on cumulative 

and projected landings in other 

commercial fishing categories, and the 

potential for gear conflicts on the fishing 

grounds or market impacts due to 

oversupply, NMFS may delay the BFT 

purse seine season start date from July 

15 to no later than August 15 by filing 

an adjustment with the Office of the 

Federal Register for publication. In no 

case shall such adjustment be filed less 

than 14 calendar days prior to July 15. 

* * * * * 

(iii) On or about May 1 of each year, 

NMFS will make equal allocations of 

the available size classes of BFT among 

purse seine vessel permit holders so 

requesting, adjusted as necessary to 

account for underharvest or overharvest 

by each participating vessel or the 

vessel it replaces from the previous 

fishing year, consistent with paragraph 

(a)(10)(i) of this section. Such 

allocations are freely transferable, in 

whole or in part, among vessels that 

have Purse Seine category Atlantic 


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Tunas permits. Any purse seine vessel 

permit holder intending to land bluefin 

tuna under an allocation transferred 

from another purse seine vessel permit 

holder must provide written notice of 

such intent to NMFS, at an address 

designated by NMFS, 3 days before 

landing any such bluefin tuna. Such 

notification must include the transfer 

date, amount (in metric tons) 

transferred, and the permit numbers of 

vessels involved in the transfer. Trip or 

seasonal catch limits otherwise 

applicable under § 635.23(e) are not 

affected by transfers of bluefin tuna 

allocation. Purse seine vessel permit 

holders who, through landing and/or 

transfer, have no remaining bluefin tuna 

allocation may not use their permitted 

vessels in any fishery in which Atlantic 

bluefin tuna might be caught, regardless 

of whether bluefin tuna are retained. 

* * * * * 

(5) Harpoon category quota. The total 

amount of large medium and giant BFT 

that may be caught, retained, possessed, 

landed, or sold by vessels that possess 

Harpoon category Atlantic Tunas 

permits is 3.9 percent (57.1 mt) of the 

overall U.S. BFT baseline quota. The 

Harpoon category fishery closes on 

November 15 each year. 

(6) Trap category quota. The total 

amount of large medium and giant BFT 

that may be caught, retained, possessed, 

or landed by vessels that possess Trap 

category Atlantic Tunas permits is 0.1 

percent (1.5 mt) of the overall U.S. BFT 

baseline quota. 

(7) * * * 

(i) The total amount of BFT that is 

held in reserve for inseason or annual 

adjustments and fishery-independent 

research using quotas or subquotas is 

2.5 percent (36.6 mt) of the overall U.S. 

BFT baseline quota. Consistent with 

paragraph (a)(8) of this section, NMFS 

may allocate any portion of this reserve 

for inseason or annual adjustments to 

any category quota in the fishery. 

(ii) The total amount of school BFT 

that is held in reserve for inseason or 

annual adjustments and fisheryindependent research is 18.5 percent 

(22.0 mt) of the total school BFT quota 

for the Angling category as described 

under paragraph (a)(2) of this section. 

This is in addition to the amounts 

specified in paragraph (a)(7)(i) of this 

section. Consistent with paragraph (a)(8) 

of this section, NMFS may allocate any 

portion of the school BFT held in 

reserve for inseason or annual 

adjustments to the Angling category. 

(8) Determination criteria. NMFS will 

file with the Office of the Federal 

Register for publication notification of 

any inseason or annual adjustments. 

Before making any adjustment, NMFS 

will consider the following criteria and 

other relevant factors: 

(i) The usefulness of information 

obtained from catches in the particular 

category for biological sampling and 

monitoring of the status of the stock. 

(ii) The catches of the particular 

category quota to date and the 

likelihood of closure of that segment of 

the fishery if no adjustment is made. 

(iii) The projected ability of the 

vessels fishing under the particular 

category quota to harvest the additional 

amount of BFT before the end of the 

fishing year. 

(iv) The estimated amounts by which 

quotas for other gear categories of the 

fishery might be exceeded. 

(v) Effects of the adjustment on BFT 

rebuilding and overfishing. 

(vi) Effects of the adjustment on 

accomplishing the objectives of the 

fishery management plan. 

(vii) Variations in seasonal 

distribution, abundance, or migration 

patterns of BFT. 

(viii) Effects of catch rates in one area 

precluding vessels in another area from 

having a reasonable opportunity to 

harvest a portion of the category’s quota. 

(ix) Review of dealer reports, daily 

landing trends, and the availability of 

the BFT on the fishing grounds. 

(9) Inseason adjustments. Within a 

fishing year, NMFS may transfer quotas 

among categories or, as appropriate, 

subcategories, based on the criteria in 

paragraph (a)(8) of this section. NMFS 

may transfer inseason any portion of the 

remaining quota of a fishing category to 

any other fishing category or to the 

reserve as specified in paragraph (a)(7) 

of this section. 

(10) Annual adjustments. (i) If NMFS 

determines, based on landings statistics 

and other available information, that a 

BFT quota for any category or, as 

appropriate, subcategory has been 

exceeded or has not been reached, with 

the exception of the Purse Seine 

category, NMFS shall subtract the 

overharvest from, or add the 

underharvest to, that quota category for 

the following fishing year. These 

adjustments would be made provided 

that the underharvest being carried 

forward does not exceed 100 percent of 

each category’s baseline allocation 

specified in paragraph (a) of this 

section, and the total of the adjusted 

category quotas and the reserve are 

consistent with ICCAT 

recommendations. For the Purse Seine 

category, if NMFS determines, based on 

landings statistics and other available 

information, that a purse seine vessel’s 

allocation, as adjusted, has been 

exceeded or has not been reached, 

NMFS shall subtract the overharvest 

from, or add the underharvest to, that 

vessel’s allocation for the following 

fishing year. Purse seine vessel 

adjustments would take place provided 

that the underharvest being carried 

forward does not exceed 100 percent of 

the purse seine category baseline 

allocation. Any of the unharvested 

quota amounts being carried forward, as 

described in this paragraph, that exceed 

the 100 percent limit will be transferred 

to the reserve, or another domestic 

quota category provided the transfers 

are consistent with paragraph (a)(8) of 

this section. 

(ii) NMFS may allocate any quota 

remaining in the reserve at the end of a 

fishing year to any fishing category, 

provided such allocation is consistent 

with the criteria specified in paragraph 

(a)(8) of this section. 

(iii) Regardless of the estimated 

landings in any year, NMFS may adjust 

the annual school BFT quota to ensure 

that the average take of school BFT over 

each 4–consecutive-year period 

beginning in the 1999 fishing year does 

not exceed 8 percent by weight of the 

total U.S. BFT baseline quota for that 

period. 

(iv) If NMFS determines that the 

annual dead discard allowance has been 

exceeded in one fishing year, NMFS 

shall subtract the amount in excess of 

the allowance from the amount of BFT 

that can be landed in the subsequent 

fishing year by those categories 

accounting for the dead discards. If 

NMFS determines that the annual dead 

discard allowance has not been reached, 

NMFS may add one-half of the 

remainder to the amount of BFT that 

can be landed in the subsequent fishing 

year. Such amount may be allocated to 

individual fishing categories or to the 

reserve. 

(v) NMFS will file any annual 

adjustment with the Office of the 

Federal Register for publication and 

specify the basis for any quota 

reductions or increases made pursuant 

to this paragraph (a)(10). 

(b) * * * 

(1) Commercial quotas. The 

commercial quotas for sharks specified 

in paragraphs (b)(1)(i) through (b)(1)(vi) 

of this section apply to sharks harvested 

from the management unit, regardless of 

where harvested. Commercial quotas are 

specified for each of the management 

groups of large coastal sharks, small 

coastal sharks, and pelagic sharks. No 

prohibited sharks, including parts or 

pieces of prohibited sharks, which are 

listed under heading D of Table 1 of 

Appendix A to this part, may be 


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58172 Federal Register / Vol. 71, No. 190 / Monday, October 2, 2006 / Rules and Regulations 

retained except as authorized under 

§ 635.32. 

* * * * * 

(c) * * * 

(1) * * * 

(i) * * * 

(A) A swordfish from the North 

Atlantic stock caught prior to the 

directed fishery closure by a vessel that 

possesses a directed or handgear 

swordfish limited access permit will be 

counted against the directed fishery 

quota. The annual fishery quota, not 

adjusted for over- or underharvests, is 

2,937.6 mt dw for each fishing year 

beginning June 1, 2004. The annual 

quota is subdivided into two equal 

semiannual quotas of 1,468.8 mt dw: 

one for June 1 through November 30, 

and the other for December 1 through 

May 31 of the following year. After 

December 31, 2007, the annual quota is 

subdivided into two equal semiannual 

quotas: one for January 1 through June 

30, and the other for July 1 through 

December 31. 

* * * * * 

(C) All swordfish discarded dead from 

U.S. fishing vessels, regardless of 

whether such vessels are permitted 

under this part, shall be counted against 

the annual directed fishing quota. 

* * * * * 

(ii) South Atlantic swordfish. The 

annual directed fishery quota for the 

South Atlantic swordfish stock for the 

2005 fishing year is 75.2 mt dw. For the 

2006 fishing year and thereafter, the 

annual directed fishery quota for south 

Atlantic swordfish is 90.2 mt dw. The 

entire quota for the South Atlantic 

swordfish stock is reserved for vessels 

with pelagic longline gear onboard and 

that possess a directed fishery permit for 

swordfish. No person may retain 

swordfish caught incidental to other 

fishing activities or with other fishing 

gear in the Atlantic Ocean south of 5 

degrees North latitude. 

(2) * * * 

(i) NMFS may adjust the July 1 

through December 31 semiannual 

directed fishery quota or, as applicable, 

the reserve category, to reflect actual 

directed fishery and incidental fishing 

category catches during the January 1 

through June 30 semiannual period. 

* * * * * 

(iv) NMFS will file with the Office of 

the Federal Register for publication any 

inseason swordfish quota adjustment 

and its apportionment to fishing 

categories or to the reserve made under 

paragraph (c)(2) of this section. 

(3) Annual adjustments. (i) Except for 

the carryover provisions of paragraphs 

(c)(3)(ii) and (iii) of this section, NMFS 

will file with the Office of the Federal 

Register for publication any adjustment 

to the annual quota necessary to meet 

the objectives of the Fishery 

Management Plan for Atlantic Tunas, 

Swordfish and Sharks. NMFS will 

provide an opportunity for public 

comment. 

(ii) If consistent with applicable 

ICCAT recommendations, total landings 

above or below the specific North 

Atlantic or South Atlantic swordfish 

annual quota will be subtracted from, or 

added to, the following year’s quota for 

that area. As necessary to meet 

management objectives, such carryover 

adjustments may be apportioned to 

fishing categories and/or to the reserve. 

Any adjustments to the 12-month 

directed fishery quota will be 

apportioned equally between the two 

semiannual fishing seasons. NMFS will 

file with the Office of the Federal 

Register for publication any adjustment 

or apportionment made under this 

paragraph (c)(3)(ii). 

(iii) The dressed weight equivalent of 

the amount by which dead discards 

exceed the allowance specified at 

paragraph (c)(1)(i)(C) of this section will 

be subtracted from the landings quota in 

the following fishing year or from the 

reserve category. NMFS will file with 

the Office of the Federal Register for 

publication any adjustment made under 

this paragraph (c)(3)(iii). 

(d) Atlantic blue and white marlin. (1) 

Effective January 1, 2007, and consistent 

with ICCAT recommendations and 

domestic management objectives, NMFS 

will establish the annual landings limit 

of Atlantic blue and white marlin to be 

taken, retained, or possessed by persons 

and vessels subject to U.S. jurisdiction. 

For the year 2007 and thereafter, unless 

adjusted under paragraph (d)(2) of this 

section or by ICCAT recommendation, 

this annual landings limit is 250 

Atlantic blue and white marlin, 

combined. Should the U.S. recreational 

Atlantic marlin landing limit be 

adjusted by an ICCAT recommendation, 

NMFS will file a notice identifying the 

new landing limit with the Office of the 

Federal Register for publication prior to 

the start of the next fishing year or as 

early as possible. 

(2) Consistent with ICCAT 

recommendations and domestic 

management objectives, and based on 

landings statistics and other information 

as appropriate, if NMFS determines that 

aggregate landings of Atlantic blue and 

white marlin exceeded the annual 

landings limit for a given fishing year, 

as established in paragraph (d)(1) of this 

section, NMFS will subtract any 

overharvest from the landings limit for 

the following fishing year. Additionally, 

if NMFS determines that aggregate 

landings of Atlantic blue and white 

marlin were below the annual landings 

limit for a given fishing year, as 

established in paragraph (d)(1) of this 

section, NMFS may add any 

underharvest, or portion thereof, to the 

landings limit for the following fishing 

year. Such adjustments to the annual 

recreational marlin landings limit, as 

specified in paragraph (d)(1) of this 

section, if necessary, will be filed with 

the Office of the Federal Register for 

publication prior to the start of the next 

fishing year or as early as possible. 

(3) When the annual marlin landings 

limit specified in paragraph (d)(1) or, if 

adjusted, as specified in paragraph 

(d)(2) of this section is reached or 

projected to be reached, based upon a 

review of landings, the period of time 

remaining in the current fishing year, 

current and historical landings trends, 

and any other relevant factors, NMFS 

will file for publication with the Office 

of the Federal Register an action 

restricting fishing for Atlantic blue and 

white marlin to catch-and-release 

fishing only. In no case shall such 

adjustment be effective less than 14 

calendar days after the date of 

publication. From the effective date and 

time of such action until additional 

landings become available, no blue or 

white marlin from the management unit 

may be taken, retained, or possessed. 

■ 19. In § 635.28, paragraphs (a)(1) and 

(a)(3) are revised to read as follows: 

§ 635.28 Closures. 

(a) * * * 

(1) When a BFT quota, other than the 

Purse Seine category quota specified in 

§ 635.27(a)(4), is reached, or is projected 

to be reached, NMFS will file a closure 

notice with the Office of the Federal 

Register for publication. On and after 

the effective date and time of such 

action, for the remainder of the fishing 

year or for a specified period as 

indicated in the notice, fishing for, 

retaining, possessing, or landing BFT 

under that quota is prohibited until the 

opening of the subsequent quota period 

or until such date as specified in the 

notice. 

* * * * * 

(3) If NMFS determines that variations 

in seasonal distribution, abundance, or 

migration patterns of BFT, or the catch 

rate in one area, precludes participants 

in another area from a reasonable 

opportunity to harvest any allocated 

domestic category quota, as stated in 

§ 635.27(a), NMFS may close all or part 

of the fishery under that category. 

NMFS may reopen the fishery at a later 

date if NMFS determines that 

reasonable fishing opportunities are 


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available, e.g., BFT have migrated into 

the area or weather is conducive for 

fishing. In determining the need for any 

such interim closure or area closure, 

NMFS will also take into consideration 

the criteria specified in § 635.27(a)(8). 

* * * * * 

■ 20. In § 635.30, paragraph (c)(2) is 

revised to read as follows: 

§ 635.30 Possession at sea and landing. 

* * * * * 

(c) * * * 

(2) A person who owns or operates a 

vessel that has a valid Federal Atlantic 

commercial shark limited access permit 

may not fillet a shark at sea. A person 

may eviscerate and remove the head and 

fins, except for the second dorsal and 

anal fin, but must retain the fins with 

the dressed carcasses. The second dorsal 

and anal fin must remain on the shark 

until the shark is offloaded. Wet shark 

fins may not exceed 5 percent of the 

dressed weight of the carcasses on board 

a vessel or landed, in accordance with 

the regulations at part 600, subpart N, of 

this chapter. 

* * * * * 

■ 21. In § 635.31, paragraph (a)(1) is 

revised to read as follows: 

§ 635.31 Restrictions on sale and 

purchase. 

(a) * * * 

(1) A persons that owns or operates a 

vessel from which an Atlantic tuna is 

landed or offloaded may sell such 

Atlantic tuna only if that vessel has a 

valid HMS Charter/Headboat permit, or 

a valid General, Harpoon, Longline, 

Purse Seine, or Trap category permit for 

Atlantic tunas issued under this part. 

However, no person may sell a BFT 

smaller than the large medium size 

class. Also, no large medium or giant 

BFT taken by a person aboard a vessel 

with an Atlantic HMS Charter/Headboat 

permit fishing in the Gulf of Mexico at 

any time, or fishing outside the Gulf of 

Mexico when the fishery under the 

General category has been closed, may 

be sold (see § 635.23(c)). A persons may 

sell Atlantic tunas only to a dealer that 

has a valid permit for purchasing 

Atlantic tunas issued under this part. A 

person may not sell or purchase Atlantic 

tunas harvested with speargun fishing 

gear. 

* * * * * 

■ 22. In § 635.34, paragraphs (a) and (b) 

are revised; and paragraph (d) is added 

to read as follows: 

§ 635.34 Adjustment of management 

measures. 

(a) NMFS may adjust the catch limits 

for BFT, as specified in § 635.23; the 

quotas for BFT, shark and swordfish, as 

specified in § 635.27; the marlin landing 

limit, as specified in § 635.27(d); and 

the minimum sizes for Atlantic blue and 

white marlin, as specified in § 635.20. 

(b) In accordance with the framework 

procedures in the Highly Migratory 

Species Fishery Management Plan, 

NMFS may establish or modify for 

species or species groups of Atlantic 

HMS the following management 

measures: maximum sustainable yield 

or optimum yield based on the latest 

stock assessment or updates in the 

SAFE report; domestic quotas; 

recreational and commercial retention 

limits, including target catch 

requirements; size limits; fishing years 

or fishing seasons; shark fishing regions 

or regional quotas; species in the 

management unit and the specification 

of the species groups to which they 

belong; species in the prohibited shark 

species group; classification system 

within shark species groups; permitting 

and reporting requirements; workshop 

requirements; Atlantic tunas Purse 

Seine category cap on bluefin tuna 

quota; time/area restrictions; allocations 

among user groups; gear prohibitions, 

modifications, or use restriction; effort 

restrictions; essential fish habitat; and 

actions to implement ICCAT 

recommendations, as appropriate. 

* * * * * 

(d) When considering a framework 

adjustment to add, change, or modify 

time/area closures, NMFS will consider, 

consistent with the FMP, the MagnusonStevens Act, and other applicable law, 

but is not limited to, the following 

criteria: any Endangered Species Act 

related issues, concerns, or 

requirements, including applicable 

BiOps; bycatch rates of protected 

species, prohibited HMS, or non-target 

species both within the specified or 

potential closure area(s) and throughout 

the fishery; bycatch rates and postrelease mortality rates of bycatch 

species associated with different gear 

types; new or updated landings, 

bycatch, and fishing effort data; 

evidence or research indicating that 

changes to fishing gear and/or fishing 

practices can significantly reduce 

bycatch; social and economic impacts; 

and the practicability of implementing 

new or modified closures compared to 

other bycatch reduction options. If the 

species is an ICCAT managed species, 

NMFS will also consider the overall 

effect of the U.S.’s catch on that species 

before implementing time/area closures. 

■ 23. In § 635.71, paragraphs (a)(7), 

(a)(8), (a)(19), (a)(23), (a)(37), (a)(41), 

(a)(42), (a)(43), (a)(44), (b)(6), (b)(22), 

(c)(1), (c)(6), (d)(10), (d)(11), (e)(10), 

(e)(11), (e)(12), and (e)(15) are revised; 

and paragraphs (a)(48) through (a)(53), 

(b)(30) through (b)(35), (c)(7), (c)(8), 

(d)(14), (e)(16), and (e)(17) are added to 

read as follows: 

§ 635.71 Prohibitions. 

* * * * * 

(a) * * * 

(7) Fail to allow an authorized agent 

of NMFS to inspect and copy reports 

and records, as specified in § 635.5(e) 

and (f) or § 635.32. 

(8) Fail to make available for 

inspection an Atlantic HMS or its area 

of custody, as specified in § 635.5(e) and 

(f). 

* * * * * 

(19) Utilize secondary gears as 

specified in § 635.21(b) to capture, or 

attempt to capture, any undersized or 

free swimming Atlantic HMS, or fail to 

release a captured Atlantic HMS in the 

manner specified in § 635.21(a). 

* * * * * 

(23) Fail to comply with the 

restrictions on use of pelagic longline, 

bottom longline, gillnet, buoy gear, or 

speargun gear as specified in 

§ 635.21(c), (d), (e)(3), (e)(4), or (f). 

* * * * * 

(37) Fail to report to NMFS, at the 

number designated by NMFS, the 

incidental capture of listed whales with 

shark gillnet gear as required by § 635.5. 

* * * * * 

(41) Fail to immediately notify NMFS 

upon the termination of a chartering 

arrangement as specified in 

§ 635.5(a)(5). 

(42) Count chartering arrangement 

catches against quotas other than those 

defined as the Contracting Party of 

which the chartering foreign entity is a 

member as specified in § 635.5(a)(5). 

(43) Fail to submit catch information 

regarding fishing activities conducted 

under a chartering arrangement with a 

foreign entity, as specified in 

§ 635.5(a)(5). 

(44) Offload charter arrangement 

catch in ports other than ports of the 

chartering Contracting Party of which 

the foreign entity is a member or offload 

catch without the direct supervision of 

the chartering foreign entity as specified 

in § 635.5(a)(5). 

* * * * * 

(48) Purchase any HMS that was 

offloaded from an individual vessel in 

excess of the retention limits specified 

in §§ 635.23 and 635.24. 

(49) Sell any HMS that was offloaded 

from an individual vessel in excess of 

the retention limits specified in 

§§ 635.23 and 635.24. 

(50) Fish without being certified for 

completion of a NMFS protected species 


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58174 Federal Register / Vol. 71, No. 190 / Monday, October 2, 2006 / Rules and Regulations 

safe handling, release, and identification 

workshop, as required in § 635.8. 

(51) Fish without having a valid 

protected species workshop certificates 

issued to the vessel owner and operator 

on board the vessel as required in 

§ 635.8. 

(52) Falsify a NMFS protected species 

workshop certificate or a NMFS Atlantic 

shark identification workshop certificate 

as specified at § 635.8. 

(53) Fish for, catch, possess, retain, or 

land an Atlantic swordfish using, or 

captured on, ‘‘buoy gear’’, as defined at 

§ 635.2, unless the vessel owner has 

been issued a swordfish directed limited 

access permit or a swordfish handgear 

limited access permit in accordance 

with § 635.4(f). 

(b) * * * 

(6) As the owner of a vessel permitted, 

or required to be permitted, in the 

Atlantic HMS Angling or Atlantic HMS 

Charter/Headboat category, fail to report 

a BFT, as specified in § 635.5(c)(1) or 

(c)(3). 

* * * * * 

(22) As the owner or operator of a 

purse seine vessel, fail to comply with 

the requirement for possession at sea 

and landing of BFT under § 635.30(a). 

* * * * * 

(30) Fish for any HMS, other than 

Atlantic BAYS tunas, with speargun 

fishing gear, as specified at § 635.21(f). 

(31) Harvest or fish for BAYS tunas 

using speargun gear with powerheads, 

or any other explosive devices, as 

specified in § 635.21(f). 

(32) Sell, purchase, barter for, or trade 

for an Atlantic BAYS tuna harvested 

with speargun fishing gear, as specified 

at § 635.31(a)(1). 

(33) Fire or discharge speargun gear 

without being physically in the water, 

as specified at § 635.21(f). 

(34) Use speargun gear to harvest a 

BAYS tuna restricted by fishing lines or 

other means, as specified at § 635.21(f). 

(35) Use speargun gear to fish for 

BAYS tunas from a vessel that does not 

possess either a valid HMS Angling or 

HMS Charter/Headboat permit, as 

specified at § 635.21(f). 

(c) * * * 

(1) As specified in § 635.21(e)(2), 

retain a billfish harvested by gear other 

than rod and reel, or retain a billfish on 

board a vessel unless that vessel has 

been issued an Atlantic HMS Angling or 

Charter/Headboat permit or has been 

issued an Atlantic Tunas General 

category permit and is participating in 

a tournament in compliance with 

§ 635.4(c). 

* * * * * 

(6) As the owner of a vessel permitted, 

or required to be permitted, in the 

Atlantic HMS Angling or Atlantic HMS 

Charter/Headboat category, fail to report 

a billfish, as specified in § 635.5(c)(2) or 

(c)(3). 

(7) Deploy a J-hook or an offset circle 

hook in combination with natural bait 

or a natural bait/artificial lure 

combination when participating in a 

tournament for, or including, Atlantic 

billfish, as specified in § 635.21(e)(2). 

(8) Take, retain, or possess an Atlantic 

blue or white marlin when the fishery 

for these species has been restricted to 

catch and release fishing only, as 

specified in § 635.27(d). 

(d) * * * 

(10) Retain, possess, sell, or purchase 

a prohibited shark, including parts or 

pieces of prohibited sharks, as specified 

under §§ 635.22(c), 635.24(a)(3), and 

635.27(b)(1), or fail to disengage any 

hooked or entangled prohibited shark 

with the least harm possible to the 

animal as specified at § 635.21(d)(3). 

(11) Receive, purchase, trade, or barter 

for Atlantic sharks without a valid 

Atlantic shark identification workshop 

certificate or fail to be certified for 

completion of a NMFS Atlantic shark 

identification workshop in violation of 

§ 635.8. 

* * * * * 

(14) Receive, purchase, trade, or barter 

for Atlantic shark without making 

available for inspection, at each of the 

dealer’s places of business authorized to 

receive shark, a valid Atlantic shark 

identification workshop certificate 

issued by NMFS in violation of 

§ 635.8(b). 

(e) * * * 

(10) Fish for, catch, possess, retain, or 

land an Atlantic swordfish using, or 

captured on, ‘‘buoy gear’’ as defined at 

§ 635.2, unless the vessel owner has 

been issued a swordfish directed limited 

access permit or a swordfish handgear 

limited access permit in accordance 

with § 635.4(f). 

(11) As the owner of a vessel 

permitted, or required to be permitted, 

in the swordfish directed or swordfish 

handgear limited access permit category 

and utilizing buoy gear, to possess or 

deploy more than 35 individual 

floatation devices, to deploy more than 

35 individual buoy gears per vessel, or 

to deploy buoy gear without affixed 

monitoring equipment, as specified at 

§ 635.21(e)(4)(iii). 

(12) Fail to mark each buoy gear as 

required at § 635.6(c)(1). 

* * * * * 

(15) As the owner of a vessel 

permitted, or required to be permitted, 

in the Atlantic HMS Angling or Atlantic 

HMS Charter/Headboat category, fail to 

report a North Atlantic swordfish, as 

specified in § 635.5(c)(2) or (c)(3). 

(16) Possess any HMS, other than 

Atlantic swordfish, harvested with buoy 

gear § 635.21(e). 

(17) Fail to construct, deploy, or 

retrieve buoy gear as specified at 

§ 635.21(e)(4)(iii). 

■ 24. In Appendix A to part 635, revise 

Table 2 and add Table 3 to read as 

follows: 

Appendix A to Part 635—Species 

Tables 

* * * * * 

TABLE 2 OF APPENDIX A TO PART

635—PELAGIC SPECIES

Albacore tuna, Thunnus alalunga 

Bigeye tuna, Thunnus obesus 

Blue shark, Prionace glauca 

Bluefin tuna, Thunnus thynnus 

Dolphin fish, Coryphaena hippurus 

Oceanic whitetip shark, Carcharhinus longimanus 

Porbeagle shark, Lamna nasus 

Shortfin mako shark, Isurus oxyrinchus 

Skipjack tuna, Katsuwonus pelamis 

Swordfish, Xiphias gladius 

Thresher shark, Alopias vulpinus 

Wahoo, Acanthocybium solandri 

Yellowfin tuna, Thunnus albacares 

TABLE 3 OF APPENDIX A TO PART

635—DEMERSAL SPECIES

Atlantic sharpnose shark, Rhizoprionodon 

terraenovae 

Black grouper, Mycteroperca bonaci 

Blackfin snapper, Lutjanus buccanella 

Blacknose shark, Carcharhinus acronotus 

Blacktip shark, Carcharhinus limbatus 

Blueline tilefish, Caulolatilus microps 

Bonnethead shark, Sphyrna tiburo 

Bull shark, Carcharhinus leucas 

Cubera snapper, Lutjanus cyanopterus 

Dog snapper, Lutjanus jocu 

Finetooth shark, Carcharhinus isodon 

Gag grouper, Mycteroperca microlepis 

Lane snapper, Lutjanus synagris 

Lemon shark, Negaprion brevirostris 

Mangrove snapper, Lutjanus griseus 

Marbled grouper, Dermatolepis inermis 

Misty grouper, Epinephelus mystacinus 

Mutton snapper, Lutjanus analis 

Nurse shark, Ginglymostoma cirratum 

Queen snapper, Etelis oculatus 

Red grouper, Epinephelus morio 

Red hind, Epinephelus guttatus 

Red snapper, Lutjanus campechanus 

Rock hind, Epinephelus adscensionis 

Sand tilefish, Malacanthus plumieri 

Sandbar shark, Carcharhinus plumbeus 

Schoolmaster snapper, Lutjanus apodus 

Silk snapper, Lutjanus vivanus 

Snowy grouper, Epinephelus niveatus 

Speckled hind, Epinephelus drummondhayi 

Spinner shark, Carcharhinus brevipinna 

Tiger shark, Galeocerdo cuvieri 

Tilefish, Lopholatilus chamaeleonticeps 

Vermilion snapper, Rhomboplites aurorubens 

Warsaw grouper, Epinephelus nigritus 

Yellowedge grouper, Epinephelus flavolimbatus 

Yellowfin grouper, Mycteroperca venenosa 

Yellowtail snapper, Ocyurus chrysurus 

[FR Doc. 06–8304 Filed 9–29–06; 8:45 am] 

BILLING CODE 3510–22–S 


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